STATE OF KERALA Vs. GOVINDAN PONNAMMA

JUDGEMENT

(1.) Both the appeals are filed by the State of Kerala against two money decrees obtained by the same set of persons in two suits for declaration and mandatory injunction directing the defendant State to refund money deposited as bid amount and duty in Abkari auctions. The two C. M. Ps. are for stay of execution. A learned Judge of this Court ordered interim stay and notice in both the petitions. The petitions came up for hearing at the instance of the respondents. They wanted the State in both appeals to be directed under O.41, R.1(3) of the Civil Procedure Code to deposit the entire decree amount. O.41, R.1(3) reads -

(2.) Mr. K. P. Dandapani on behalf of the respondents said that under O.41, R.1(3) deposit of the amount disputed in the appeal or furnishing security in respect thereof is mandatory for the maintainability of an appeal when it is against a decree for payment of money. He cited two decisions in support of his contention. I do not think that the argument is sound. Before dealing with that argument I think it is necessary to refer to two other provisions. O.41, R.5 says:

(3.) According to sub-rule (3) three conditions are to be satisfied before ordering stay of execution. Third condition of which alone we are concerned here is that security has been given by the applicant for the due performance of decree or order as may ultimately be binding upon him R.6 also deals with security but we are not concerned with it because it relates to an order for execution of decree from which an appeal is pending. Under sub-rule (4) of R.5 the Court can make even an ex parte order provided the conditions of sub-rule (3) are satisfied. If these conditions are satisfied and if there is sufficient cause, it is within the jurisdiction of the Appellate Court to grant stay of execution. Sub-rule (5) provides that where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of R.1, the Court shall not make an order staying the execution of the decree. That is the only consequence of non compliance of the provisions of O.41 R.1(3). O.27, R.8 says that no such security as is mentioned in R.5 and 6 of O.41 shall be required from the Government or, when 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. Mr. Dandapani is of the view that this provision applies only to O.41, R.5 and 6 and not to O.41, rule I (3) which, according to him, is independent of R.5 and 6. I do not think that I will be able to agree with that view also.