D. K. SETH, RAJENDRA NATH SINHA

( 1 ) THE prayer for stay of operation of the judgment and decree appealed against made by Mr. Sadhan roychowdhury in this application for stay was opposed by Mr. Suchit Kumar Banerjee, learned counsel appearing for the respondent No. 1. According to him, the Court cannot grant any stay unless the condition contained in sub-rule (3) clause (c) of Rule 5 of order 41 of the Code of Civil Procedure (CPC)is complied with. He contended that sub-rule (3) of Rule 1 of the Order 41, CPC makes it mandatory for the appellant to secure or deposit the money while preferring an appeal against a money decree. He relies on a decision in Himachal Road Transport Corporation, Shimla v. Sushila Devi, AIR 1986 him Pra 78. According to him, Order 27, rule 8a, CPC refers to Rules 5 and 6 of Order 41, CPC but omits to mention or refer to order 41, Rule 1 (3) CPC. Therefore, Order 41, Rule 1 (3), CPC is not subject to Order 27, Rule 8a, CPC even if the appellant is government, as in the present case. He had also relied on the decision in Jaisingh v. Jagat Ram, AIR 1953 Nagpur 176. According to him, mere allegation of hardship or irreparable loss will not justify grant of interim order as has been pleaded in the present case.

( 2 ) MR. Roychowdhury, however, contended that Rule 1 (3) of Order 41, CPC will not help Mr. Banerjee otherwise the provisions of order 27, Rule 8a, CPC would become nugatory.

( 3 ) IN our view, Order 41, Rule 1 (3), CPC makes it incumbent on the appellant to deposit or secure the amount of the money decree within the time that may be allowed by the Court or in such manner as the Court may deem fit and proper. This itself left a discretion to the Court which may extend the time or may direct something which it may deem fit and proper in the exigencies of a case. According to Mr. Banerjee, this discretion is not absolute. This was so held in the Himachal Road Transport corporation (AIR 1986 Him Pra 78) (supra ). But the fact remains that non-compliance of Order 41, Rule 1 (3), CPC has not been provided for. The enactment is silent with regard to the consequence of non-compliance thereof. But when Order 41, Rule 5 in sub-rule (5)makes it a condition for grant of stay, in that event, Order 41, Rule 1 (3) is to be read along with Order 41, Rule 5 in order to find out the consequence of non-compliance. Such non-compliance will not entitle the appellant to obtain stay. In case we accept the proposition of Mr. Banerjee in respect of money decree, in that event, sub-rule (3), rule 1 of Order 41 would satisfy the execution of the money decree whenever an appeal is filed. Such a wide proposition cannot be accepted. It has been made subject to Rule 5 of Order 41 in order to obtain stay, one has to comply with the same. This is the consequence of non-compliance of Order 41, Rule 1 (3), CPC. The purpose and object is to secure the respondent's claim and save him from the hazards of delay in execution, as was observed in the Himachal road Transport Corporation (AIR 1986 Him pra 78) (supra ). But when the appellant is a government then the legislature thought it fit that such an exigency may not arise there. As such it has granted some benefit to the government, which is for the people by incorporating rule 8a in Order 27, CPC. It has made Rules 5 and 6, Order 41 subject to rule 8a of Order 27, CPC. Order 41, Rule 5 makes the deposit of or security for the money decree under Rule 1 of sub-rule (3)subject to sub-rule (5) of Rule 5 of Order 41 and as such it cannot avoid the implication or effect of Rule 8-A of Order 27, CPC. Under sub-rule (5), the Court shall not make an order staying execution of the decree unless the deposits or security specified under sub-rule (3) of Rule 1 of Order 41, CPC is complied with. Therefore, Rule 1 (3) of order 41 is subject to Rules 5 and 6 of Order 41 which is again governed by Rule 8-A of Order 27, CPC when the appellant is Government. Such a view was taken by the allahabad H

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