BARMAN BROTHERS Vs. R VENKATA KRISHNA RAO

JUDGEMENT

(1.) By order dated 4th March, 1980 interim stay was granted on condition that the petitioners deposit half the decretal amount and costs within six weeks from the said date. The respondents have now filed a counter requesting that the stay may be vacated. Mr. T. V. Sarma, the learned Counsel for the respondents contends that the appellate Court has no jurisdiction to grant stay of execution of a money decree in view of sub-rule (3) of rule 1 of Order 41, Civil Procedure Code. He contends that sub-rule (5) of Order 41, does not apply to money decrees.

(2.) To appreciate this contention it is necessary to refer to sub-rule (3) of rue 1 and rule 5 of Order 41, Civil Procedure Code: Sub-rule (3) is as follows:- "Where the appeal is against a 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, Civil Procedure Code, is as follows:- "5. (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree but the Appellate Court may for sufficient cause order stay of execution of such decree".

(3.) There is nothing to indicate in these Rules that the Appelate Court has no power to grant stay of execution of a money decree. Reading both the Rules, it only means that in case of a money decree an unconditional stay cannot be granted. The discretion conferred by rule 5 shall be subject to the conditions mentioned in sub-rule (3). The contention is therefore rejected.