Srimati Darogani Devi and Others vs Most. Surati Devi and Others

Ram Nandan Prasad, J.—Heard leaned counsel for the Appellants and learned Counsel for the Respondents in respect of the stay petition.

This appeal has been admitted by order dated 16.10.90 in which there is a reference to the facts of the case at some length and after considering all aspects this appeal has been admitted. It appears that after the filing of this appeal ad interim stay of execution m the court below had been granted by order dated 23.12.36. That ad interim stay is still continuing. In that very order it has been made clear that execution of decree for cost, if tiny, is not stayed.

Miss. Jain, learned Counsel appearing on behalf of the Appellants, has submitted that in fact if the decree for eviction is not stayed then the appeal will become in fructuous. Her further argument is that stay has been no in operation since 1986 and there has been no substantial change in the situation and no further substantial change is likely to be caused if the stay is allowed to operate till the disposal of the appeal.

Mr. M.P. Pandey, learned Counsel appearing on behalf of the Respondents, has urged that stay should be vacated because due to the stay order, the Respondents are being denied the fruits of their decree. But this happens whenever a stay is passed in a pending appeal in this Court. His further contention is that no stay can be granted unless the Appellants have deposited security in terms of Order XLI Rule 5 Sub-rule 3(o) C.P.C No doubt Sub-rule 5 of Rule 5 mentions that no slay should be granted (sic)there has been camphene regarding deposit of security as mentioned in Sub-rule 3. In the present Case learned Counsel for the Respondent was not able to point out that there has been any court by any court for making any court it of security. However, he urged that the order for depositing security may be made now. When ho was asked whether in the suit any money claim by way of damages or otherwise has been made, he was not able to state in the affirmative. On the contrary, from the record it appears that no such claim was made. Mr. Pandey has relied upon a decision reported in Mohd. Abdus Samad Vs. Mahboobunnisa Begum, That case obviously has no application for the simple reason that the decree in that case related to money claim.

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 suet 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" for mentioned in Clause (c) of Sub-rule 3 of Rule 5 of order XLL. The order for depositing security may become necessary where the decree involves a money claim or where the Respondents are able to show and satisfy the court that the suit property is likely to suffer waste or damage during pendency of this appeal due to negligence or deliberate act of the Appellants. It is not so in the present case. In my opinion, therefore, no order for depositing security is required in the present case. The Appellant�s contention is correct that the Appellants will suffer substantial lose if execution is not stayed and the; entire appeal will then become in fructuous.

In the facts and circumstances of this case, the ad interim stay, therefore is made absolute till the disposal of this, appeal., HOWever, the panics will be at liberty to pray before Hon�ble the Chief Justice that this appeal and fie analogous second appeal No. 732/86 may be heard at an early date.

As regards the cost, the ad interim stay order itself clearly mentions that there is No. stay of execution of the same.