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2022 DIGILAW 240 (PAT)

Madhurendra Kumar Singh v. Asha Devi

2022-03-29

NAWNEET KUMAR PANDEY

body2022
ORDER Learned counsel for the appellants are directed to remove all the defects pointed out by the Stamp Reporter within one month. 2. Heard learned counsel for the appellants as well as learned counsel for the respondents, on I.A. No. 01 of 2021 filed on behalf of the appellants under Order XLI Rule 5 for stay of the further proceeding of Execution Case No. 01 of 2015. 3. This second appeal was admitted vide order dated 03.03.2022. 4. The application for stay has been opposed by the learned counsel for the respondents on two grounds:— (i) The proper security has not been given in accordance with order XLI Rule 5 sub-rule 3(c) of the Code of Civil Procedure 1908 ( hereinafter referred as ‘the Code’). (ii) That this court passed an order dated 08.03.2022 staying the further proceeding of the case for 15 days, which has been elapsed and no prayer has been made to extend it. 5. So far as the first ground is concerned the learned counsel for the appellants, relying upon a decision of this Court reported in the case of Smt. Drogni Devi vs. Most. Surati Devik and others 1991 PLJR (1) page 26, has submitted that the security is not essential in a case of eviction. It depends upon nature of the case. In paragraph no. 5 of the decision, this Court has observed as follows:— “A Simple reading of clause (c) of sub-rule 3 makes it clear that the security is required to be deposited “for the due performance of such a decree.” In the present case the due performance of the decree passed by the lower court is merely eviction, nothing more, obviously, if the appellants lose the case here, then by execution the eviction can be achieved under the due process of law. As such, there is absolutely no necessity of making any security deposit “for the due performance of the decree” as mentioned in clause (c) of sub-rule 3 of Rule 5 of order 41.” 6. As such, there is absolutely no necessity of making any security deposit “for the due performance of the decree” as mentioned in clause (c) of sub-rule 3 of Rule 5 of order 41.” 6. In reply thereof, the learned counsel for the respondents has cited two decisions, the first, AIR 1935 Madras 43 (Sundaram Chettiar vs. P.A.Valli Ammal), the Hon’ble Madras High Court has been pleased to hold as follows:— “I am therefore of the opinion though, as I said before, I came to this opinion with some hesitation, that it is incompetent in such a case as this for the Appellate Court to entertain an application for stay of proceedings under Order XLI Rule 5, Civil Procedure Code. At the same time sub Clause (3) of that rule prevents an order for stay of execution being made unless security has been given by the appellant for the due performance of such decree or order as may ultimately be binding upon him.” 7. The second decision is the case of Hadibandhu Senapati and another vs. Smt. Champamani Behera and others (AIR 1996 ORISSA page 85). The relevant paragraph no. 4 of that decision is as follows:— “4. Rule 5 of Order 41, CPC relates to stay of proceedings and of execution. By the Amendment Act 104 of 1976 an Explanation has been added to sub-rule (1) to provide that an order for stay of execution made by the appellate Court operates only from the time it is communicated to the executing Court. After an appeal has been filed the appellate Court may order the stay of proceedings under the decree or of execution of such decree. Obviously the rule will apply only when the decree under appeal is capable of execution. The provisions of sub-rule (3) of Rule 5 are mandatory, and therefore, conditions prescribed in clauses (a), (b) and (c) thereof must be fulfilled before granting a stay. The power to grant stay of execution on sufficient cause being shown is controlled by sub-rule (3) and each of the three conditions specified therein must be satisfied before stay is granted. Execution should not be stayed unless the Court is satisfied that substantial loss may otherwise result to the judgment-debtor, and the application is made without unusual delay. The power to grant stay of execution on sufficient cause being shown is controlled by sub-rule (3) and each of the three conditions specified therein must be satisfied before stay is granted. Execution should not be stayed unless the Court is satisfied that substantial loss may otherwise result to the judgment-debtor, and the application is made without unusual delay. The amount deposited as security under Rule 5 does not ipso facto without an order of Court, become the property of the decree-holder. Under sub-rule (3) of Rule 5 it is clear that no order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied about the pre-conditions stipulated therein. One of the conditions is that the security has been given by the appellant for the due performance of such decree or order as may ultimately be binding upon him. There is no force in the submission of Mr. Kar that the requirement of furnishing security is applicable to money decrees and not to other decrees. There is nothing in sub-rule (3) to support such a plea. The language of sub-rule (3) of Rule 5 is emphatic and imperative mandating that no order of stay of execution shall be made unless the Court is satisfied that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him, amongst other conditions. The provision is couched in mandatory language, and if the Court finds that no security has been furnished by the applicant no order of stay of execution can be made under sub-rule (1) or sub-rule (2).” 8. The learned counsel for the respondents has submitted that deposit of furnishing of security is mandatory. 9. These two decisions of Hon’ble Madras High Court and Orissa High Court are generic in nature requiring furnishing of security at the time of granting of stay of execution of decree under Order 41 Rule 5, whereas the decision of this Court reported in 1991 PLJR 26 (supra) is specifically on the execution of the decree in eviction suit in which this Court did not require furnishing of the security in cases of eviction suit. The decision of this High Court shall prevail upon decision of any other High Court. 10. The decision of this High Court shall prevail upon decision of any other High Court. 10. So far as second ground is concerned, the learned counsel for the respondents has submitted that vide order dated 8th March 2022 there was ad interim stay for 15 days which has been elapsed and there is no prayer for extension of that stay order. 11. The learned counsel for the appellant has submitted that the order of 15 days was not a final order on the stay petition, rather it was only for the purpose of facilitating the learned counsel for the appellants for filing an undertaking to which he has already filed. 12. Perusal of the order dated 08.03.2022 shows itself that the order of stay for 15 days was granted only to provide opportunity to the learned counsel for the appellant for filing an undertaking for furnishing of security by way of undertaking. 13. Learned counsel for the appellants has submitted that although in the light of the decision of 1991 (1) PLJR page 26 (supra) the security was not essential to be furnished but in compliance of this Court’s order he has already filed an undertaking. 14. A decision in the case of Atma Ram Properties (P) Ltd. vs. Federal Motors Pvt. Ltd. reported in 2005 (1) PLJR 320 (SC), has been cited by both sides and both sides have cited the same paragraph no. 9 which is as follows:— “9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be ‘substantial loss’ to the party applying for stay of execution within the meaning of Clause (a) of Sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the Appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an Appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. However, this is not the only condition which the Appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an Appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. So also, an Appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for order of stay must do equity for seeking equity. Depending on the facts and circumstances of a given case an Appellate Court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In South Eastern Coalfields Ltd. vs. State of M.P. and Ors.*, (2003)8 SCC 648 , this Court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection to it, effective during the pendency of the proceedings, has held that such interim orders, passed at an interim stage, stand reversed in the event of the final decision going against the party successful in securing interim orders in its favour; and the successful party at the end would be justified in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand, (a) the delivery to it of benefit earned by the opposite party under the interim order of the High Court, or (b) compensation for what it has lost, and to grant such relief is the inherent jurisdiction of the Court. In our opinion, while granting an order of stay under order 41 Rule 5 of the CPC, the Appellate Court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal in so far as those proceedings are concerned. In our opinion, while granting an order of stay under order 41 Rule 5 of the CPC, the Appellate Court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal in so far as those proceedings are concerned. Thus, for example, though a decree for payment of money is not ordinarily stayed by the Appellate Court, yet, if it exercises its jurisdiction to grant stay in an exceptional case it may direct the appellant to make payment of the decretal amount with interest as a condition precedent to the grant of stay, though the decree under appeal does not make provision for payment of interest by the judgment- debtor to the decree-holder. Robust commonsense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record-- all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis and Ors. vs. Bombay Municipal Corporation and Ors., (1985) 3 SCC 545 , “commonsense which is a cluster of life’s experiences, is often more dependable than the rival facts presented by warring litigants.” 15. The learned counsel for the respondents has submitted that paragraph 9 of that decision makes mandatory for furnishing of the security and on relying on the same paragraph the learned counsel for the appellants has submitted that Hon’ble Supreme Court has been pleased to hold as follows:— “...an appellate court while passing an order of stay may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal.” 16. This clause shows that it is on the discretion of the court to require the appellants to file security on such terms the enforcement would require. In the instant case an undertaking has already been given on behalf of the appellants that in case the appellant becomes unsuccessful the respondents may take the possession of the premises. 17. By relying upon the two decisions reported in 2008 (10) SCC 796 (Rajaram Prasad Gupta and Anr. In the instant case an undertaking has already been given on behalf of the appellants that in case the appellant becomes unsuccessful the respondents may take the possession of the premises. 17. By relying upon the two decisions reported in 2008 (10) SCC 796 (Rajaram Prasad Gupta and Anr. vs. Ramchandra Prasad and Ors.) and 2001(2) PLJR 268 (Dharam Nath Ojha & ors. vs. Raghunath Ojha), the learned counsel for the appellants has submitted that when the subject matter of the suit property is a residential house in which the appellants are residing, it is well settled that in cases where the subject matter of suit is residential premises and the judgment-debtor is residing in it, the prayer for stay ordinarily be granted. 18. Learned counsel for the respondent has also submitted that the Appendix G of the Code of Civil Procedure mandates to furnish security in the format prescribed in Appendix-G (2). He has submitted that the amount of security and the property mortgaged to be included in the security given at the time of filing of the stay petition. 19. As already discussed that in the light of decision reported in 1991 (1) PLJR page 26 (supra) does not make mandatory for filing of the security in case of eviction suit as such there is no question of the security to be furnished in format prescribed in Appendix-G of the Code of Civil Procedure. 20. On the basis of above mentioned observations, the further proceedings of Execution Case No. 01 of 2015 is stayed till the disposal of this second appeal. 21. Accordingly, the petition filed under Order 41 Rule 5 is being disposed of. List this matter after three months. 22. Office shall ensure that all the defects are removed by the appellants within the stipulated time provided hereinabove, failing which the matter shall be brought to the notice of this Court.