The Luxmi Ginning and Oil Mills, Khanna and another vs M/s Sugru Mal Karam Chand, Commission Agent Machhiwara and others

J.V. Gupta, J.—The Plaintiff Respondent M/s Sagru Mal Karam Chand, got a money decree against the Defendants i.e., The Luxmi Ginning and Oil Mills and others, for the recovery of Rs. 1,64,816.15, from the the trial Court vide decree dated February 11, 1988. The Defendants-Petitioners filed an appeal against the said decree of the trial Court While admitting the appeal, the learned District Judge, Ludhiana. passed the following order,-

Heard. Admitted subject to the Appellants'' depositing in the trial Court the amount disputed in appeal, within ?0 days Notice to the Respondents and their counsel to be named within 7 days on process-fee for 6.6.1988 Records of the trial Court also be summoned.

It is against this order that the present revision petition has been filed on the ground that the appeal could not be admitted subject to the contention of depositing the decretal amount by the Appellants

According to the learned Counsel for the Petitioners, the only effect for not depositing the decretal amount as directed by the lower appellate Court, would be that the Petitioners will not be entitled to the stay of the execution of the decree passed by the trial Court. In support of the contention, the learned Counsel relied upon Pehlad v. Dalai Singh (1978) 80 P.L.R. 125; Union of India v. Jagan Nath Radhey Shyam & Co. (1979) 81 P. L.R. D. 50. and Himachal Road Transport Corporation Shimla Vs. Sushila Devi and Others, .

After hearing the learned Counsel for the parties, I find force in the contention raised on behall of the Petitioner. The matter stands concluded by the above said judgments.

In Pehlad''s case (supra), after introduction of Order XLI Rule 1(3) by the legislature, this Court considered its effect in paragraph 9 of the judgment as follows:-

The rule authorises the appellate Court in money decree to direct the Appellant to furnish security or deposit the disputed amount in an appeal as it thinks fit. The sub-rule has been introduced for the benefit of a decree holder. I have already mentioned above that the decree-holder has to face the real difficulty in exeution of his decree Prior to the introduction of the rule, the Court had suo motu no power to order the judgment-debtor to deposit the amount or furnish security. Id order to lessen the hardship of the decree holder the Court has been given this power. The sub-rule, however, does not appear to be mandatory. The reason for coming to this conclusion is that the Code does not provide that if the decretal amount or security, as ordered by the Court is not deposited or furnished by the judgment debtor, the appeal is liable to be dismissed on this ground.

Sub-rule (5) of Rule 5 of Order XLI reads as follows,-

Notwithstanding anything contained in the foregoing sub-rules, where the Appellants fails to make the deposit or furnish the security specified in sub rule (3) of Rule 1, the Court shall make an order staying the execution of the decree.

Reading both the provisions together it is quite evident that in case the amount is not deposited as directed by the Court under Sub-rule (3) of rule I of Order XLI of the Code, then, the Court shall not make an order staying the execution of the decree.

The matter was also considered by the Delhi High Court in Jagan Nath Radhey Shyam & Co.''s case (supra), and it was held that reading Sub-rule (3) of Rule 1 of Order XLI of the Code, all that can be said is that as long as the decretal amount is not deposited or security is not furnished, the Court shall not make an order staying the execution of the decree

Similarly, in Sushila Devi''s case (supra), it was ruled that if there is non compliance of an order made under Sub-rule (3) of Rule 1 Order XLI, the Court has no power to reject the memorandum of appeal or to direct that the appeal be consigned to the record room.

In view of these judgments, the impugned order admitting the appeal subject to the condition of depositing amount is liable to be set aside. In case, the decretal amount is not deposited or no security is furnished by the judgment debtors, which may be directed if the lower appellate Court so desires, the judgment-debtors will not be entitled to any stay of the execution of the decree by the trial Court. To this extent, this revision petition succeeds and is disposed of accordingly with no order as to costs.