Honble SHARMA, J.–At the time of consideration of submissions advanced in respect of admission of the appeal a short and interesting question arose in respect of interpretation of the provisions contained in sub rule (3) of Rule 1 of Order 41 CPC which provides that "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 there of as the court may think fit".

(2). Mr. R.K. Agrawal, learned counsel appearing for the appellants canvassed that the various High Courts had occasion to interpret the aforesaid sub rule (3) of Rule 1 of Order 41 along with Rule 5 of Order 41 CPC. and it was held that the afore- said rule is not mandatory in nature.

(3). The basic ruling in this regard is Union Bank of India and another vs. Jagan Nath Radhey Shyam and Co. and another (1). The Code of Civil Procedure (Amendment) Bill, 1974, (Bill No. 27 of 1974) as introduced in the Parliament was considered by the Delhi High Court and it was held in paras 18,19 and 20 thus:

``18. After this report of the Joint Committee, we find that the proposed Rule 1 A was omitted from the Act as passed by Parliament and Rule (5) of Order 41 of the Code was suitably amended.

19. A bare reading of the report of the Joint Committee and thereafter the omission of Rule 1A from Order 41 as proposed in the Bill clearly shows that the intention of the Parliament was not to make the deposit of the decretal amount or the furnishing of the security before filing of appeal against money decree as a condition precedent for valid presentation of the appeal. There is thus no force in this submission as well.

20. Reading sub-rule (3) of Rule 1 of the Order 41 along with sub-rule (5) of Rule 5 of the Code, all that can be said is that so long as the decretal amount is not deposited or security is not furnished, the Court shall not make order staying the execution of the decree.

(4). In J. Lakshmikantham vs. Uppala Rajamma and others (2), it was indica- ted thus-

``A bare reading of C1. 87 (original C1.90) of the Joint Committee Report concerned with the Amendment Bill of the Civil P.C. which was Bill No.27 of 1974 and thereafter the omission of R.1 A from O.41 as proposed in the Bill, clearly shows that the intention of the Parliament was not to make the deposit of the decretal amount or the fur- nishing of the security before filling of appeal against a money decree, as a condition precedent for valid representation of the appeal. As a corollary therefore it equally follows that what could not be a condition precedent for filing the appeal could not equally be allowed to be a condition precedent for final adjudication as well.

(5). In State of Andhra Pradesh and another vs. Mahmud Hasan Khan Maharaj Kumar of Mahamoodabad (3), the Division Bench of Andhra Pradesh High Court in para 4 propounded thus-

``4. The contention thus raised, in our view, is without any substance. On a reading of sub-cl. (3) of R.1 and sub-cl. (5) of R. 5 of 0. 41, espe- cially having regard to the words, may allow" in sub-cl. (3) of Rule 1 the Parliament did not state before an application for stay of execution of money decree is made, money should be deposited or security must be tendered. The language of the two provisions does not indicate compliance of either of the two conditions is mandatory or that it is a condition precedent. In our view, without making the deposit or without tendering security, a "stay" application is maintainable. The Appellate Court in granting the order of stay, however will have regard to the fact whether money was deposited or sufficient security was tendered and in context of the situation, Court, may pass orders as it "thinks fit". In this view, the contentions of the respondent are rejected.

(6). In Prabhakar vs. Vinayakrao (4), it was observed in para 4 thus-

``As said above the assumption of the Appellate Court that the appeal would

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