Joymalya Bagchi, J.

The following questions of law have been referred for consideration by a Larger Bench:

(1) In an appeal preferred by a Government, whether the Government is entitled to get stay of execution of the decree impugned by taking aid of Order 27 Rule 8A of the Code, even if, the conditions mentioned in Clauses (a) and (b) of Sub-Rule 3 of Rule 5 of Order XLI are not complied with ?

(2) Whether a money appeal preferred by the Government can be disposed of on merit though till the time of hearing of the appeal, the Government has neither deposited the decretal amount nor has it given security thereof in terms of Sub Rule 3 of Rule 1 of Order XLI of the Code?

(3) Whether for non-compliance of the requirement of Order XLI Rule 1(3) of the Code, an appeal can be dismissed ?

(4) Whether the constitutional guarantee for securing the payment of debt arising out of any judgment and decree against the Union of India as provided in Article 112(3)(f) of the Constitution of India is sufficient for absolving it of its liability of complying with the mandatory requirement of Order XLI Rule 1 sub-Rule 3 of the Code of Civil Procedure ?

Controversy giving rise to the Reference:

In Union of India Vs. M/s. Burma Construction, AIR 2004 (Cal) 174 a Division Bench of this Court while interpreting Order XLI Rule 1 (3) and Rule 5 (5) of the Civil Procedure Code held in an appeal from a money decree if the appellant is the Government, it shall not be mandatory on its part to deposit or furnish security in respect of disputed decretal amount in view of the exemption provided under Rule 8A of Order 27 of the Code. It would depend upon the discretion of the Court and such discretion ought to be exercised bearing in mind the aforesaid exemption provision.

In the aforesaid appeals contrary view was taken by another co-ordinate Bench. The Bench held that Order XLI Rule 1(3) of the Civil Procedure Code is mandatory and non-compliance thereof would entail dismissal of the appeal, more particularly, when the appellant fails to comply with the direction of the Court to make deposit or furnish security in respect of the decretal amount. Accordingly, the aforesaid questions of law were referred to a larger Bench for consideration.

Contention of the appellants :

Mr. Tarafdar, learned advocate appearing for the appellants in F.A.No.336 of 2007 at the outset admitted that Order 27 Rule 8A of the Code did not exempt the Government as an appellant from satisfying the requirements of clauses (a) and (b) of Rule 5(3) of Order XLI of the Code of Civil Procedure. In other words, even if the appellant is the Government it has to satisfy the requirements laid down in clauses (a) and (b) of Rule 5(3) of Order XLI in order to obtain an order of stay for execution of a decree

.

Mr. Tarafdar, however, argued that in view of the exemption given to the Government under Order 27 Rule 8A of the Code no deposit or furnishing of equivalent security in respect of the disputed decretal amount can be insisted upon for grant of stay of execution of the decree.

In support of his contention, he referred to State of Kerala Vs. T.K. Kuruvilla & Ors., AIR 2004 Ker 233.

With regard to question No.2, Mr. Tarafdar submitted that the issue whether Order XLI Rule 1(3) is mandatory or directory is no longer res integra in view of the law declared by the Apex Court in Kayamuddin Shamsuddin Khan Vs. State Bank of India, (1998) 8 SCC 676, M/s. Malwa Strips Pvt. Ltd. Vs. M/s. Jyoti Ltd., AIR 2009 SC 1581.

With regard to question No.3 he submitted relying on Himachal Road Transport Corporation Vs. Sushila Devi & Ors, AIR 1986 HP 78 that failure to deposit the disputed decretal amount or furnish security cannot as a matter of rule result in postponement of hearing of the appeal but the same ought to be left to the discretion of the Court in the factual matrix of each case.

Contention of the respondents :

Mr. Ghosal, learned advocate appearing for the respondents submitted that tho