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IN THE HIGH COURT OF BOMBAY
Daga V.C., J.
Bhogvati Sahakari Sakhar Karkhana Limited .... Appellant.
Versus
Chaugule Sons.... Respondent.
First Appeal No. 636 of 2002, decided on 12-12-2002.
Advocates appeared :
G.S. Godbole, for appellant.
Deposit of Decretal Amount - Civil Procedure Code - Order 41 Rule 1(3), Order 41 Rule 5 - The court examined the legislative history and amendments to the Civil Procedure Code, emphasizing the necessity of exercising power under Order 41, Rule 1(3) to curtail litigation and prevent multiplicity of proceedings. The court held that the provision should be activated to serve the ends of justice and the cause of administration of justice.
Fact of the Case:
The appellant did not pray for interim relief against a money decree directing payment of Rs. 38,263.18 to the respondent with future interest. The appellant was called upon to show cause why the powers under Order 41, Rule 1(3) of the Civil Procedure Code should not be exercised directing it to deposit the decretal amount pending adjudication of the appeal.
Finding of the Court:
The court found that the exercise of power under Order 41, Rule 1(3) of the Civil Procedure Code was necessary, and directed the appellant to deposit the entire decretal amount with interest and costs within eight weeks.
Issues: The main issue was whether the appellant should be directed to deposit the decretal amount pending adjudication of the appeal, despite not seeking interim relief.
Ratio Decidendi: The court held that the provision under Order 41, Rule 1(3) of the Civil Procedure Code should be activated to prevent multiplicity of proceedings and serve the ends of justice.
Final Decision: The court directed the appellant to deposit the entire decretal amount with interest and costs within eight weeks, and the respondent would be entitled to withdraw the amount on furnishing security to the satisfaction of the trial Court within eight weeks thereafter.
Admit.
2. While hearing this appeal for admission, it was noticed that the appellant did not pray for interim relief. The impugned money decree directs the appellant/original defendant to pay sum of Rs. 38,263.18 to the respondent/original plaintiff together with future interest thereon at the rate of 6% per annum. The appellant therefore, was called upon to show cause; why the powers under Order 41, Rule 1(3) of the Code of Civil Procedure, 1908 ("C.P.C." for short) should to be exercised directing it to deposit decretal amount pending adjudication of the appeal.
3. The learned Counsel for the appellant, in reply contends that deposit of money or furnishing security can not be put as a condition precedent for tenability of the appeal. In his submission no such order can be passed in exercise of powers under Order 41, Rule 1(3) of Civil Procedure Code. He submits that considering the legislative history of the provision no such order should be passed. He relies on Amending Act; being the Act 104 of 1976 which came into effect from 1st February, 1977, whereby Order 41, Rule 1(3) has been inserted. It reads as under :
"(3) 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."
Sub-rule (5) of Rule 5 of Order 41 has also been amended by the same Amending Act.
The Code of Civil Procedure (Amendment) Bill, 1974, (Bill No. 37 of 1974) which was introduced in Parliament contained, inter alia; the following relevant provision :
"In the First Schedule, in Order XLI.-
(i) in Rule 1,
(a) to sub-rule (1), the following proviso shall be added, namely :-
"Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by the judgment, whether by the same appellant or by different appellant, the Appellate Court may dispense with the filing of more than one copy of the judgment."
(b) after sub-rule (2), the following sub-rule shall be inserted, namely:-
"(3) Where the appeal is against an order made in execution of 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"
(ii) in Rule 3, after sub-rule (1) the following sub-rule shall be inserted, namely:-
(1-A) Where the appellant fails to make deposit or furnish security specified in sub-rule (3) of Rule 1, the Court shall reject the memorandum of appeal......"
The bill was referred to; for consideration of the Joint Committee. The Joint Committee in its report submitted to the Lok Sabha on 1st April 1976, as published in Gazette of India; Extraordinary, Part II, Section 2 (Paragraph 65) thereof stated as under :-
"65; Clause 87 (original Clause 90).-
(i) The Committee note that under the proposed new sub-rule (1-A) of Rule 3 in Order XLI, if the appellant fails either to deposit the amount disputed in the appeal or to furnish security for such amount, the memorandum of appeal shall be rejected. The committee feel that such a provision will deprive a judgment-debtor having a good case, to pursue the appeal on account of his inability to deposit the disputed amount or to furnish security for such amount.
The Committee are, therefore, of the opinion that in order to see that justice done to both the parties, the proposed sub-rule might be amended in such a way that neither the judgment-debtor is deprived of his right to pursue the appeal nor the decree
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