ORDER :- The non-applicant obtained a decree against the applicant for an amount of Rs. 1,840/- against which the applicant preferred an appeal in the Court of the District Judge, Akola, on 8-9-1980. On 10-9-1980 the Appellate Court called upon the applicant-appellant to state whether he had complied with O.41, R.1(3) of the Civil P.C. (hereinafter referred to as "the Code") by crediting decretal amount in Court. On 22-9-1980 the counsel for the applicant made an endorsement on the appeal memo to the effect that the amount had not been deposited. Thereafter on 24-9-1980 the Appellate Court passed the following order :

"It is money decree and unless the decretal amount is paid the appeal is not tenable under O.41, R.1(3), C.P.C. Hence, appellant to credit the decretal amount with costs within 7 days. C.F. 1-10-1979 (sic)."

Since the applicant did not deposit the amount till 1-10-1980 as directed by the Appellate Court, his counsel sought for further time to do so and the Appellate Court granted him time till 17-10-1980. It is at this stage that the applicant presented this revision application in this Court on 14-10-1980 disputing the validity of the order passed on 24-9-1980.

2. The question which arises for consideration in this revision application is whether compliance with the provisions contained in sub-r.(3) of R.1 of O.41 of the Code is condition precedent to filing an appeal against a decree for payment of money. Sub-rules (1) and (2) of R.1 of O.41 prescribe the mode of preferring an appeal. Sub-rule (3) which has been inserted by the Code of Civil Procedure (Amendment) Act 1976 is in the following terms :

"(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."

Since sub-rule (3) has been placed in R.1 of O.41 of the Code which prescribes the mode in which an appeal can be preferred, it may appear as if this sub-rule lays down the requirement for preferring an appeal against a decree for money. In other words, it may look as if an appeal against a decree for payment of money would not be tenable unless and until the appellant deposits the amount disputed in the appeal or furnishes such security in respect thereof as the Appellate Court may allow. It is because of this that the Appellate Court in the present case appears to have suo motu passed the impugned order.

3. If the legislative history in enacting this sub-rule is looked to, it will be clear that it was never the intention of the Legislature to make compliance with sub-rule (3) as a condition precedent for preferring an appeal against a decree for payment of money. The Code of Civil Procedure (Amendment) Bill, 1976 (Bill No. XXIV of 1976) proposed insertion of the said sub-rule in the form in which it has been enacted.

However, at the same time the bill also proposed to insert sub-rule (1A) in R.3 of O.41 to the following effect :

"(1A). Where the appellant fails to make deposit or furnish security specified in sub-rule (3) of R.1, the Court shall reject the memorandum of appeal."

This bill was referred to a Joint Committee of both the Houses of Parliament which submitted its report on 1-4-1976. Paragraph 65 of the report dealt with the clause of the Bill under which the abovesaid two sub-rules were sought to be inserted in R.3 of O.41. The observations of the Committee which are relevant for our purpose are in the following terms:

"(1). The Committee note that under the proposed new sub-rule (1A) of R.3 in O.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 amoun

Click Here to Read the rest of this document