BANSIDHAR Vs. PRIBHU DAYAL

JUDGEMENT

(1.) This case comes today for determination of the appellant's application under Order 41, Rule 5, Civil P. C. The respondent had filed a suit against the appellant in the Court of the Civil Judge, Alwar for Rs. 3437/8/- on account of the loss sustained by him for alleged breach of contract committed by the appellant in refusing to take delivery of the goods. The trial Court dismissed the suit but on the plaintiff's appeal to the District Judge, Alwar, a decree for Rs. 2750/- with proportionate cost in both the Courts has been given in his favour. The defendant has, therefore, come here in second appeal and presented a petition for staying the execution of the decree pending the decision of this appeal. On 29-8-1952, notice was issued to the opposite party to show cause why the stay application be not allowed, and an ad interim order to stay the execution was passed on that date. The appellant's learned advocate wants the order to be made absolute while the respondent's learned advocate seriously contests it on the ground that the appellant has sufficient means to pay up the decree and no substantial loss is likely to occur to him.

(2.) It appears from the appellant's application dated 29-8-1952, that he has requested for staying the execution on the following grounds: .

(3.) In support of his application he has filed an affidavit. The respondent on the other hand has stated in his reply that it is entirely incorrect to say that the appellant is unable to make payment of the decretal amount. It is alleged that the marketable goods and cash in addition to his immovable property and jewellery are in no way less than 50,000 rupees, and that he is carrying on business in Alwar market on a large scale. He has also filed his own affidavit and also three other affidavits of Ramji Lal, Kedar Nath and Ladu Ram to the same effect. He has argued that this is only a money decree against the appellant and this Court should not stay the proceedings. In support of his argument he has referred to the case of -- 'Dhunjibhoy Cowasji Umrigar v. Lisboa' 13 Bom 241 (A), where it was held that