State of Andhra Pradesh and another vs Mahmud Hasan Khan Maharaj Kumar of Mahamoodabad

Raghuvir, J.—This Court in C.M.P. No 4210/1982 on April 23, 1982 accorded interim stay of execution of a money decree, (the subject in appeal) on furnishing security by the (appellants) petitioners for the decreed amount by bank guarantee or other security, to the satisfaction of the lower Court. The security, as directed, was tendered by the petitioners., The security was accepted by the lower court. This application has now come up for making the interim order absolute.

In this petition, the learned counsel for respondent (the decree-holder) referred to sub-cl. (3) of R. 1 and sub-cl (5) of R. 5 of O. 41 of the Civil P.C. and argued the "stay" application is not maintainable. In the range of issues raised, the debate covered (1) relating to the maintainability of the appeal, CCCA No. 84/1982 (2) and maintainability of the application CMP No. 4210/82 in CCCA No. 84/82. The learned counsel for the respondent, as to former argued, the decision of the Delhi High Court in Union Bank of India and Another Vs. Jagan Natb Radhey Shyam and Co. and Another, was wrongly decided; We understand that argument to contend the appeal is not maintainable. The learned counsel, however, in the course of the debate explained, it is not his contention; the appeal is maintainable.

The learned counsel, however pressed for acceptance the latter contention and argued the "stay" application is not maintainable. The contention was elaborated to hold where appeal pertains to a money decree under sub-cl. (3) of R. 1 and sub-cl. (5). of R. 5 of O. 41. having regard to the intendment of the Parliament and on interpretation of the above two clauses, before an application is made seeking to stay of execution of money decree, perforce, under the above two provisions, so it is asserted, the decrial amount either be deposited or security must be tendered before a stay application is heard by this Court; Unless one of the two things is complied, the stay application, it is argued, is not maintainable. In this regard, the decision, in J. Lakshmikantham Vs. Uppala Rajamma and Others, was cited and the decision in that case, it is argued, is wrongly decided. The contention is further elaborate that the Parliament intended, the deposit of money decreed or security is a condition precedent when a judgment-debtor seeks stay of execution; in the words of the learned counsel. "It is a requirement in law and when one of the two conditions is not complied, it results in non-maintainability of the application."

The contention thus raised, in our view, is without any substance. On a reading of sub-cl. (31 of R. 1 and sub-cl. (5) of R. 5 of O. 41, especially having regard to the words, "may allow" in sub-cl. (3) of R. 1, the Parliament did not state before an application for stay of execution of money decree is made, money should be deposited or security must be tendered. The language of the two provisions does not indicate compliance of either of the two conditions is mandatory or that it is a condition precedent. In our view, without making the deposit or without tendering security, a "stay" application is maintainable. The Appellate Court in granting the order of stay, however will have regard to the fact whether money was deposited or sufficient security was tendered and in the context of the situation. Court, may pass orders as it "thinks fit". In this view, the contentions of the respondent are rejected.

In the instant case, security was tendered and the security was accepted by the executing court therefore, the interim order of April 23, 1982 is made absolute.