RABINARAYAN SAHU Vs. R C M S

JUDGEMENT

(1.) A short, but interesting question, arises in this case is whether the appeal preferred by the unsuccessful defendant in a money decree can be dismissed at the threshold if he fails to deposit the decretal amount in the appellate Court.

(2.) THE plaintiff, respondent herein, by filing this Misc. Case under Order 41, Rule 1(3), CPC has prayed for a direction to the defendant - appellant to deposit the decretal, amount of Rs. 16,450/ - and on his failure to deposit the same, the appeal filed by him be dismissed.

(3.) FROM the above it appears that at the outset it was proposed to introduce a provision that if the appellant fails to deposit the amount or furnish the security, as the case may be, the Court shall reject the memorandum of appeal, but the Legislature accepted the suggestion of the Joint Committee and omitted the said Sub -rule (1 A) while bringing out the amendment. From this it is deducible that the intention of the Legislature was not to make the deposit of the decretal amount or furnishing of the security a condition precedent for filing an appeal. Therefore, the appellate Court cannot dismiss the appeal at the initial stage if its direction as contained in Sub -rule (3) of Rule 1 of Order 41, CPC is not complied with by the appellant.