JUGAL KISHORE MEHER Vs. BJAYA KUMAR AGARWALLA

JUDGEMENT

(1.) The petitioner in the present Civil Revision Case suffered a money decree for 12,100/ - in Money Suit No. 1/86 of the Court of the learned Subordinate Judge, Patnagarh. He preferred Money Appeal No. 3/91 in the Court of the learned District Judge, Boiangir against the said money decree. He did not deposit the decretal amount in the said appeal. It appears that the decree -holder -opposite party filed an application before the lower appellate Court for a direction upon the judgment -debtor -appellant to deposit the decretal dues in Court. On the said application an order was passed on July 16, 1993 directing the appellant to deposit the decretal amount by July 30,1993. The judgment -debtor -appellant took time on several occasions to deposit the decretal amount. On October 13, 1993 he filed an application praying for furnishing security instead of depositing the decretal amount in cash. By order No. 33 dated December 4, 1993 the learned District Judge rejected the said application and also dismissed the appeal for default. Against the aforesaid order dated December 4, 1993 the judgment -debtor has moved this revisional application.

(2.) MR . A. K. Misra, appearing for the petitioner submits that the learned District Judge went beyond his jurisdiction in dismissing the appeal inasmuch as Order 41, Rule 1, Sub -rule (3) of the Civil Procedure Code does not contemplate dismissal of appeal as a consequence of failure to deposit the decretal amount or to furnish sufficient security. In support of his submission Mr. Misra relies upon the judgments reported in AIR 1983 - Bom. 301 (Prabhakar v. Vinayakrao). AIR 1983 A.P. 277 (State of Andhra Pradesh and Anr. v. Mohamud Hasan Khan Moharaj Kumar of Mahammodabad) and AIR 1986 HP 78 (Himachal Road Transport Corporation, Shimla v. Sushila Devi and Ors.).

(3.) ALTHOUGH Order 41, Rule 1, Sub -rule (3), CPC has laid down that 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' it has not provided for consequences of non -compliance with the said provision. The consequence has been indicated In Order 41, Rule 5, Sub -rule (5). It has been laid down therein 'Notwithstanding anything contained in the foregoing sub -rules, where the appellant fails to make the deposit or furnish the security specified in Sub -rule (3) of Rule 1, the Court shall not make an order staying the execution of the decree.' It is obvious from the language of Order 41, Rule 5, Sub -rule (5) that the only consequence contemplated is that in case of failure to make the deposit or to furnish the security as provided in Sub -rule (3) of Rule 1, the Court shall not grant stay of the execution of the money dacree.