judgment

Dr. Arijit Pasayat, J. —

1.Challenge in this appeal is to the order passed by the Division Bench of the Kerala High Court. By the impugned order the High Court in exercise of jurisdiction under order XLI Rule 1(3) of the Code of Civil Procedure, 1908 (in short the CPC) directed the appellant to deposit a sum of Rs.5,00,000/- in trial court within a particular time. Appellants question the correctness of the order on the ground that the High Court could not have referred to Order XLI Rule 1(3) in the absence of any application for stay.

2.Learned counsel for the respondents on the other hand supported the order of the High Court.

3.Undisputedly, in the present case there was no application for stay filed. A few decisions of this Court being relevant need to be noted.

4.In Kayamuddin Shamsuddin Khan v. State Bank of India,1 [1998 (8) SCC 676] the dispute related to Order XLI Rule 1(3) it was held that if the amount is not deposited, the appeal could be directed to be dismissed. Obviously reference was to Order XLIII Rule 5(5). In paragraphs 6 and 8 this Court observed as follows:

“6.The learned counsel for the respondent has invited our attention to sub-rule (3) of Rule 1 of Order