STATE OF ORISSA AND ANR. Vs. PRATIBHA PRAKASH BHAWAN REPRESENTED BY ITS PROPRIETOR, MANAGER, BRAJA SUNDAR PATNAIK

JUDGEMENT

(1.) THIS is an application by the Appellant for stay of execution of a decree for payment of Rs. 7,188.50 paise with costs.

(2.) IN a decision reported in : 50 (1980) C.L.T. 191 (Collector, Cuttack v. Padma Charan Mohanty), Division Bench of this Court held that while granting stay of further proceeding of execution case, State Government is not to be caned upon for furnishing security for the due performance of decree ultimately to be binding upon it. Order 41, Rule 1(3) provides that the amount payable on a decree for money, shall either be deposited or security shall be furnished therefor, as may be directed by the appellate court. Order 41, Rule 5(5) Code of Civil Procedure provides that no stay shall be granted in an execution proceeding unless the decretal amount is deposited or security is furnished for the decretal amount as provided in Order 41, Rule 1(3) Code of Civil Procedure. Sub -rule (3) thereof, provides that before expiry of the time for preferring an appeal the Court which passes the decree against which appeal is to be filed, may stay execution of a decree. Order 27, Rule 8A code of Civil Procedure provides that State Government shall not be called upon to furnish security, as required under Order 41, Rule 5 or 6 Code of Civil Procedure

(3.) FROM the discussion as made above, I am inclined to hold that the execution proceeding shall remain stayed on deposit of the decretal amount with costs by the Appellant within six weeks from to -day. Decree -holder Respondent shall be at liberty to withdraw the costs without furnishing security. Decretal amount, however, shall remain stayed pending disposal of appeal