AI Structured Summary
Not yet generated for this judgment
Judgment
Gokulakrishnan, J.—The first defendant is the petitioner herein. The plaintiff filed the suit O.S. 6589 of 1982 on the file of the City Civil Court, Madras, for an injunction restraining the Canara bank and the petitioner herein to withdraw the money under Bills of Exchange. The short facts of the case is that the first defendant in the suit who is the petitioner herein sold drilling rig to the first respondent herein who is the plaintiff in the suit for Rs. 38 lakhs and odd. The payment of this money has to be made as follows�(1) Downright payment of 10 per cent, (2) balance of 10 half-yearly instalments for which 10 Bills of Exchange were executed by the plaintiff-company and such a procedure was accepted by the Canara Bank who is the second defendant in the suit. Just when the first instalment was about to be matured, the plaintiff filed the above said suit. The total value of the 10 bills of exchange, according to the learned counsel for the plaintiff, was Rs. 49,44,800. The trial court granted an ex parte injunction and finally the suit was decreed in favour of the plaintiff, who is the first respondent herein on 4th May, 1983. Let me not go into the reason as to why the suit was decreed. Suffice it to say that the first defendant filed an appeal in A.S. 346 of 1983. The First Additional City Civil Judge allowed the appeal. With the result, the petitioner herein can get the amount under the Bills of Exchange matured even without furnishing security. Immediately after the pronouncement of the judgment by the First Additional City Civil Judge, Madras, the plaintiff in the suit filed C.M.P. 248 of 1983 in A.S. 346 of 1983 under O. 41, R. 5, C.P.C., for staying the execution of the decree passed by the First Additional City Civil Judge. The First Additional City Civil Judge taking this application pissed orders stating� Therefore the earlier order permitting the first defendant to collect that amount covered by the three bills of exchange which have matured is confirmed and D-1 will be entitled to collect that amount with interest that accrued due furnishing bank guarantee through State Bank of India as desired by the counsel for the respondent. Of course it is needless to say that the rights of parties to agitate in a further higher forum cannot at all be affected by the order passed by this Court. The petition is disposed of in the above lines.
Thus, it is clear from the order and from the provisions of O. 41, R. 5(2) that the said order is passed pending filing of second appeal by the plaintiff in the original suit. O. 41, R. 5(2) reads as follows�
Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appearing therefrom, the court which passed the decree may on sufficient cause being shown order the execution to be stayed.
It is clear from the said order that the court which passed the decree has ample power to stay its decree pending filing of an appeal.
Mr. D. Souza, learned counsel appearing for the petitioner, submits that by such an order the court has modified its own decree. I am afraid I cannot countenance this argument. There is no question of modification of the order. As per O. 41, R. 5, C.P.C., the Court that passed the decree has ample power to stay the decree pending filing of an appeal against the said decree. Instead of completely staying the decree, the court thought it fit to permit the petitioner herein to withdraw the amount on furnishing security. This order, in my opinion, has not at all transgressed the powers vested with the Court under O. 41, R. 5(2), C.P.C., and the court has properly exercised that power in passing such an equitable order pending filing of an appeal. Hence I do not find any merit nor any error of law or jurisdiction involved for me to interfere with the order passed by the court below in C.M.P. 248 of 1983.
For all these reasons, the revision is dismissed with costs.