A RUDRAGOUD Vs. OFFICIAL RECEIVER BELLARY

JUDGEMENT

(1.) this la. Has been filed by the appellant who was directed by this court by Order dated 19-10-1994 to deposit 50% of the decretal amount in court within 10 weeks from 19-10-1994. Those 10 weeks elapsed at the beginning of january, 1995. The amount was not deposited. The matter has been regularly appearing before the court from time to time and on 20-6-1995, this court passed a speaking Order that if the condition imposed by this court was not complied with before the next date of hearing, that the appellant will forfeit his right to a hearing. Today, the appellant who is a practising Advocate in bellary, has filed an affidavit in which he states that he is in economic difficulties, that he has already paid certain amounts in the course of the litigation namely, an amount of Rs. 28,000/- prior to the filing of the suit and an amount of Rs. 40,000/- in the course of the hearing. His contention is that the trial court has been in error with regard to the computation of the different heads and the passing of the decree and that he is prepared to give the security of his house for half the amount of the decree and that this court should accept the same.

(2.) certain significant and equally distasteful facts in relation to this litigation require to be set out namely, the fact that the appellant who is a practising Advocate of the bellary bar was functioning as official receiver between the period from 10-10-1973 to 13-12-1980. It is alleged that he avoided handing over the records etc., for almost one year and it was under court orders that the possession was taken over when books of accounts etc., were not traceable. It is important to point out that the appellant was appointed receiver in an insolvency proceeding and that he was virtually a trustee in respect of huge properties extending over 59 acres 91 cents. The allegation is that in the course of his official duties, he had failed to account for a total of Rs. 1,55,082.68/- or in other words, that the amount had been misappropriated. The learned trial judge has, after a detailed discussion, passed a decree for the full amount on 20-1-1994. It is unfortunate that a suit had to be filed in this case against a lawyer and that even thereafter he contested the proceeding and a decree had to be passed against him. Thereafter, he has filed the present appeal challenging the correctness of the judgment which came up before the court only in october 1994 and is yet to be even admitted. The interim directions of this court to deposit 50% of the decretal amount takes into consideration the argument that there is a dispute in respect of certain heads and therefore, the court on a prima facie consideration made allowances for those heads.

(3.) by the present application, certain alternate security issought to be offered by way of an immovable property. The more important submission canvassed by the appellant's learned Advocate is that the direction of this court to deposit the amount pending appeal is virtually a condition precedent and that it would not be permissible in law to either dismiss the appeal or refuse the appellant a right of hearing if this condition is breached. He submits that even though the court may impose conditions in cases of a money decree such as a requirement to deposit the whole or part of the amount, that in. Actual fact, the only consequence if default is committed could be that the stay of the operation of the decree can either be refused or the stay if already granted can be vacated. The learned Advocate submits that the appellant cannot be deprived of his right of appeal if there is a default in observance of the condition. In support of his submission, he draws my attention to a decision of the Bombay High Court in the Case of Prabhakar v. Vinayakrao, wherein the learned judge has considered the scope of the provisions of Order 41, Rule 1. The learned judge has held that having regard to the history of these provisions, that the court must take cognizance of Rule 5 which specifies that if the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of Rule 1 of Order 41, the court shall not make an Order staying the execution of the decree. The learned judge has taken the view that this would not ipso facto disqualify the appellant from exercising his right of appeal. The next decision relied on by the appellant's learned Advocate is a decision of the andhra pradesh High Court in the case of J. Lakshmikantham v. Uppala Rajamma and others. The learned single judge in this case had occasion to follow the ratio of the decision in the case of Union Bank of India and Another v. Jagan Nath Radhey Shyam And Co. and another and to record a similar view to that taken by the Bombay High Court in the decision referred to earlier, namely that the depositing of the decretal amount or furnishing security in the appeal court was not a condition precedent for hearing and disposal of the appeal.