TODUPUNOORY SRINIVAS Vs. VENISHETTY MAHESH KUMAR

JUDGEMENT

(1.) This civil revision petition is filed by the defendant against the order of the Senior Civil Judge, Medak, in I.A.No.344 of 2005 in A.S.No.6 of 2005.

(2.) The respondent filed a suit for recovery of the amount and the suit was decreed. Against which, the defendant preferred an appeal covered by A.S. No.6 of 2005. During the pendency of the Appeal, he filed LA. No.344 of 2005 under Order 41, Rule 5 read with Section 151 of the Code of Civil Procedure (for short 'C.P.C.') requesting the Appellate Court to grant stay of execution of the judgment and decree. The respondent opposed the application. After hearing both parties, the trial Court granted stay of execution of the judgment and decree on condition of depositing 1/4th of the amount and also the costs, within 15 days from the date of order and in the event of such deposit, the respondent is at liberty to withdraw the same and the proceedings in E.P. No.4 of 2005 initiated for execution of the judgment and decree in O.S. No.58 of 2002 on the file of the Junior Civil Judge, Medak are hereby stayed. If the petitioner fails to deposit the said amount, within the stipulated time, the stay granted shall stand vacated automatically without any further orders. The petitioner, being aggrieved by the order of the trial Court dated 18-11-2005, preferred this revision challenging its validity and legality.

(3.) The learned Counsel for the revision petitioner, during the course of arguments, Submitted that the appellate Court erroneously applied sub-rule (3) of Rule 5 of C.P.C. The rule did not envisage directing the judgment debtor/appellant to deposit of part of decretal amount and Clause (c) envisages or enjoins furnishing security for the decrelal amount. Even this can be done after subjective satisfaction that the appellant is likely to defeat the decree or make it unexecutable or it causes irreparable damage to him. This clause is only a preventive measure and need not be a mandatory provision, therefore, requested to set aside the impugned order by directing the trial Court to call for security from the appellant. He further submitted that Order 41 Rule 5 only contemplates granting of stay on condition of furnishing security and it did not contemplate depositing of money. In support of his contention he relied on a judgment of the Andhra Pradesh High Court in Mohd. Abdus Samad v. Mahaboobunnisa Begum, AIR 1970 AP 210, wherein a Division Bench of this Court considered the scope of Order 41 Rule 5(3)(c) of C.P.C. and held as follows :