STATE OF KERALA Vs. T K KURUVILLA

JUDGEMENT

(1.) The above I.A. is filed by the State to stay all further proceedings in pursuance to the execution petition filed in O.S. No.150 of 1997 of the Sub Court, Kottayam. F.A.O. No.384 of 2003 is filed by the State represented by the District Collector, Kottayam against the judgment and decree in O.S. No.150 of 1997. The suit was filed by the respondents for damages for breach of contract. An amount of Rs.12,16,667.50 has been decreed in favour of the plaintiffs. It is against the above judgment and decree that this appeal is filed.

(2.) When the matter came up for hearing, we heard learned Government Pleader for the appellant and Sri. Bechu Kurian Thomas learned counsel for the respondents. Learned Government Pleader submitted that the State is entitled to get an order of stay without providing security in view of O.XXVII, R.8A of C.P.C. On the other hand, Sri. Bechu Kurian Thomas submitted that the court has a discretion in this matter and the court can direct the State to deposit a portion of the amount. He further submitted that O.XXVII, R.8A is enacted on the assumption that all the State Governments are solvent. He submitted that the court can take notice of the fact that the Government has itself admitted that it is not able to discharge the liabilities and many cheques issued by the Government were not encashed for a long time.

(3.) O.XXVII, R.8A clearly states that no such security as is mentioned in Rr.5 and 6 of O.XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity. O.XLI, R.5 enables the Appellate Court to grant stay. Learned Government Pleader brought to our notice the decision in Collector, Cuttack v. Padma Charan Mohanty (1980 Cuttack Law Times Vol. 50 page 191). In that decision, it has been stated as follows: