Tara Chand and anr. vs Joginder Singh

N. C. Jain, J. (Oral)

This revision petition has been filed by the defendant against whom money decree for a sum of Rs. 6000/ was passed by the learned trial Court. The petitioner filed an appeal against the judgment and decree of the learned trial Court before the District Judge who passed the following order at the time of admission of the appeal :

"Heard. Admitted subject to the appellants depositing in the trial Court within 30 days the amount disputed in the appeal. Notice to the respondent and his counsel to be named, within 5 days on PF for 7/12/87."

Since the necessary amount was not deposited in the trial Court as was ordered by the learned District Judge on October 16, 1987, the appeal was dismissed by the Appellate Court on December 7, 1987 by passing the following order :

"It is stated by Shri S.S. Verma, Advocate for the appellants that the amount disputed in the appeal has not deposited as ordered on 16,10.1987. Since the appeal was admitted subject to the appellants depositing in the trial Court the amount disputed in the appeal within 30 days, and the deposit has not been made, the appeal is dismissed. File be consigned."

The petitioner by way of this civil revision petition has challenged,he legality and the validity of the abovementioned orders on the ground that the deposit of the amount decreed under a money decree cannot be a condition precedent for valid presentation of the appeal. For the aforesaid proposition of law he has relied on the ratio of law laid down in Union Bank of India and another v. Jagan Nath Radhey Shyam and Co. and another, AIR 1979 Delhi 36.

After hearing the learned counsel for the parties, I am of the view that the learned District Judge has committed gross legal error and has acted illegally and in any case with material irregularity in the exercise of his jurisdiction in dismissing the appeal by the impugned order dated December 7, 1987. In fact the admission of the appeal on October 16, 1987 by putting a rider that the amount should be deposited within 30 days was illegal. The parties in a suitable case could be put to terms as regards the stay was concerned., However, while admitting the appeal no directions could be issued that the decretal amount be deposited. In any case, for nondeposit of the decretal amount the appeal could not be dismissed. If stay had been granted subject to the deposit of the amount as is done several times in the cases of money decrees the Appellate Court can always observe that in case of nondeposit of the amount, the stay shall stand vacated. However, under no circumstances the appeal itself can be dismissed for nondeposit of the amount.

In view of my aforesaid observations the revision petition is allowed, the appeal is remanded to the learned District Judge for decision on merits. If the question of stay arises before the Appellate Court it would be at liberty to pass any order regarding the deposit, bank guarantee, security etc. The parties through their counsel are directed to appear before the learned District Judge on October 12, 1988. The learned District Judge may either himself dispose of the appeal or assign it to any other Court of competent jurisdiction to try the same. No order as to costs.