MADHUR GARMENTS Vs. HASMUKH SHOPPING CENTRE

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) In this Civil Application, the prayer has been made that pending hearing and final disposal of the First Appeal No. 3476/98, the execution, implementation and operation of the impugned order passed in Precept Application No. 314/95 on 29.4.1998 by the Judge City Civil Court No. 18, Ahmedabad be stayed. Under the order impugned in the first appeal, the Court below ordered the applicant to pay a sum of Rs. 1,87,500/- to the judgment- debtor-the respondent within a period of 8 weeks from the date of the said-order. It has further been ordered that till recovery of this amount, the judgment-creditor-applicant, herein shall not transfer or sale his immoveable property in the name of Meghdoot Garments situated 'at Panchratna Building, Shop No. 20 admeasuring about 731 sq. ft. The Court has also directed the judgmen't-creditor applicant to pay a sum of Rs. 5.000/- towards cost of inquiry.

(3.) From the reading of the order impugned in the First Appeal, it no more remains in doubt that it pertains to the directions for payment of a sum of Rs. 1,87,500/- by the judgment-creditor-applicant to the judgment- debtor respondent. It amounts to or partakes a character of money decree. Moreover, this appeal is filed under Section 96 read with Order 41 Rule 1 of the C.P.C., 1908. The provisions of C.P.C. are to be made applicable to the proceedings in the matter of grant of interim relief or staying of execution, implementation and operation of the money decree. The provisions of Order 41 Rule 1(3) and Rule 5 of the C.P.C., 1908 read with Order 3.9 Rules 1 and 2 are to be taken care of and kept in mind while considering application for grant of interim relief or prayer for stay of operation of a decree. Order 41 Rule 1(3) of C.P.C. provides that in the appeal against decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the" amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Rule 5 of Order 41 of CPC provides that no order for stay of execution of the decree shall be made unless the Court making it is satisfied : (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.