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1980 Supreme(AP) 230
Andhra Pradesh High Court
Judges : A.RAMANUJULU NAIDU
Barman Brothers - Appellant
Versus
R.Venkata Krishna Rao - Respondent
Decided On : 09-03-80
The court has the discretion to grant stay of execution of a money decree, subject to specific conditions mentioned in the relevant rules.
Headnote:
Stay of Execution - Money Decree - The court has the discretion to grant stay of execution of a money decree, subject to the conditions mentioned in the relevant rules. An unconditional stay cannot be granted, and the discretion conferred by the rule shall be subject to specific conditions.
Fact of the Case:
The court granted interim stay on the condition that the petitioners deposit half the decretal amount and costs within six weeks. The respondents requested the stay to be vacated, arguing that the appellate court has no jurisdiction to grant stay of execution of a money decree.
Finding of the Court:
The court rejected the contention that the appellate court has no power to grant stay of execution of a money decree, stating that the discretion conferred by the relevant rule is subject to specific conditions. The interim stay was made absolute on the condition that the petitioners furnish security for the balance of the amount within four weeks.
Issues: Jurisdiction of the appellate court to grant stay of execution of a money decree.
Ratio Decidendi: The court has the discretion to grant stay of execution of a money decree, subject to the conditions mentioned in the relevant rules. An unconditional stay cannot be granted, and the discretion conferred by the rule shall be subject to specific conditions.
Final Decision: Interim stay was made absolute on condition that the petitioners furnish security for the balance of the amount within four weeks. In default, the stay petition stands dismissed, and the respondents are permitted to withdraw the amount deposited without furnishing any security. Petition disposed of with directions.
( 2 ) TO appreciate this contention it is necessary to refer to sub-rule (3) of rue 1 and rule 5 of Order 41, Civil Procedure Code: sub-rule (3) is as follows:- "where the appeal is against a decree for payment of money, 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". Rule 5 of Order 41, Civil Procedure Code, is as follows:- "5. (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree but the Appellate Court may for sufficient cause order stay of execution of such decree".
( 3 ) THERE is nothing to indicate in these rules that the Appelate Court has no power to grant stay of execution of a money decree. Reading both the Rules, it only means that in case of a money decree an unconditional stay cannot be granted. The discretion conferred by rule 5 shall be subject to the conditions mentioned in sub-rule (3 ). The contention is therefore rejected.
( 4 ) IT is stated that the petitioners have complied with the interim order. Interim stay is made absolute on condition that the petitioners furnish security for the balance of the amount within four weeks from today. In default, the stay petition stands dismissed. The respondents are permitted to withdraw the amount deposited with out furnishing any security. Petition disposed of with directions.
