The discretionary power of the appellate court to grant stay and the circumstances under which a stay of execution of a money decree may be granted.

1. The Petitioner/Appellant/First Defendant has filed this Miscellaneous Petition under section 151 of the Civil Procedure Code praying to stay all further proceedings in O.S. No. 41 of 2004 on the file of the learned Principal District Judge, Tuticorin, pending disposal of he Appeal.

V.C.M.P. No. 6 of 2010:

The Petitioner/Society/First Respondent/Plaintiff has filed this Miscellaneous Petition to vacate the order of Stay granted by this Court in C.M.P. No. 6552 of 2005 in A.S. No. 117 of 2005, dated 13.12.2005.

According to the learned Counsel for the Petitioner/Appellant/First Defendant, the First Respondent/Plaintiff has filed O.S. No.91 of 2001 on the file of Sub-Judge, Kovilpatti for recovery of Rs.7,53,052.75 with future interest @ 18% per annum and later the said Suit has been transferred to the file of learned Principal District Judge’s Court, Tuticorin and renumbered as O.S. No. 41 of 2004 and that the Trial Court by Judgment on 25.10.2004 has passed a decree directing the Petitioner /Appellant/First Defendant to pay to the First Respondent/Plaintiff a sum of Rs.7,53,052.75 with interest @ 18% per annum for Rs.4,95,755.60 from the date of Plaint (3.9.2001) to the date of decree and with future interest @6% per annum from the date of decree (25.10.2004) till date of realization together with costs and as against the Second Respondent/Second Defendant dismissed the Suit without costs.

2. It is the further contention on the side of the Petitioner/Appellant/First Defendant that the Petitioner/Appellant/First Defendant has filed the present Appeal A.S. No.117 of 2009 before this Court as against the Judgment and decree of the Trail Court dated 25.10.2004 in O.S. No.41 of 2004 on the file of Trail Court and the Petitioner/Appellant/First Defendant filed C.M.P.No.6552 of 2005 before this Court under Section 151 of Civil Procedure Code praying for stay for all further proceedings of the Trail court in O.S. No.41 of 204 and this Court has granted interim stay for a period of three weeks and ordered notice on 17.11.2005 and thereafter, the interim order has been extended by this Court form time to time and since an Appeal filed by the Petitioner/Appellant/First Defendant is a continuation of original Trial Court proceedings and since an Appeal is pending as on date and moreover, the interim stay is in favour of the Petitioner/Appellant/First Defendant and hence, the interim stay may be continued till the disposal of the main Appeal in the interest of justice.

3. According to the learned Counsel for the Petitioner/Appellant/First Defendant, the Suit filed by the First Defendant/Plaintiff/Society before the trail Court is not maintainable either in law or on facts and it is the case of the Petitioner/Appellant/First Defendant that if at all the First Defendant/Plaintiff has got any claim, it should proceed only against the Second Respondent/Second Defendant, inasmuch as there is no privity of contract between the Petitioner and the First Respondent/Plaintiff and moreover, the First Respondent/Plaintiff is not the owner of the goods supplied to the petitioner.

4. Per contra, it is the contention of the learned Counsel for the First Respondent/Plaintiff/Petitioner in V.C.M.P. No.6 of 2010 that the First Respondent/Plaintiff (Petitioner in M.P. No.6 of 2010) as a Co-operative Society registered under the provisions of Tamil Nadu Co-operative Societies Act and that the amount claimed in the Suit belongs to the society and the money belong to the members of the society and the First Respondent/ Plaintiff has got a valid decree from the competent Court against the Petitioner/Appellant/First Defendant and to evade payment for decree amount the First Respondent/Plaintiff has projected C.M.P No.6552 of 2005.

5. Advancing his arguments, it is the contention of the learned Counsel for the First Respondent/Plaintiff that as per Order 41, Rule (3) of Civil Procedure Code when an Appeal is filed by an aggrieved party as an App