ORDER

Misc. Case No. 105 of 2003

3.5.2007 — This is a petition by the appellant-petitioner for stay of further proceeding of Execution Case No. 10 of 2000 pending in the Court of learned Civil Judge (Senior Division) 1st Court, Cuttack till disposal of this appeal.

The plea of the appellant-petitioner is that the award, which is under challenge in the appeal is being executed in the above noted execution proceeding and if the execution is carried then the purpose of the appeal will be frustrated.

Objection has been filed by the respondents-opposite parties indicating therein that although their lands were acquired in the year 1985, compensation has not yet been paid as a result they are undergoing undue hardship and irreparable loss. They claim that law does not relish delay in making payment once the award is made and the Land Acquisition Act also clearly prescribes deposit of the awarded amount at every stage of the proceeding and for that reason no stay of the execution proceeding should be granted unless the appellant-petitioner deposits the entire or at least 80% of the awarded amount.

Learned Addl. Standing Counsel stated that the provisions of Order 27, Rule 84, CPC exempts the State Government from demand of deposit of decretal amount or furnishing of security for such amount as a condition for grant of stay. According to him, the provisions of Order 41, Rule 1(3) and Order 41, Rule 5(5),C.P.C. are not applicable to the State Government. In support of this contention, he relies on the case of Collector, Cuttack v. Padma Charan Mohanty, 50 (1980) CLT 91.

Learned counsel for the respondents-opposite parties contended that as per the provisions of Order 41, Rule 1, Sub-rule (3) and Rule 5 Sub-rule (5), C.P.C. the appellant has to deposit the differential decretal amount or furnish security for such amount in order to obtain stay of the money decree and because no exception has been noted in Order 41, exempting the State Government from depositing the decretal amount, the State-appellant can be directed to deposit the differential decretal amount as a condition for grant of stay. He argued that despite existence of Order 27, Rule 8-A, C.P.C., the apex Court and this Court have in many cases directed the State Government to deposit the decretal amount as a condition for grant of stay, which itself suggest that the alleged exemption of Order 27, Rule 8-A relates to only security and not to deposit of the decretal amount. In support of his contention he relied on the cases of State of Orissa and another v. Pratibha Prakash Bhawan etc., 69 (1990) CLT 323; State of U.P. v. Ratan Lal etc., Spl. Land Acqui¬sition Officer, Bangalore v. Dyavappa and others 1995 LACC 637; Chief General Manager, Telecom Orissa v. V.N.Enterprises, A Partnership Firm and four others, 2004 (I) OLR 687.

In view of the rival submissions of learned counsel for the respective parties, the following points emerge for consideration :

(i) Whether in an appeal under Sec. 54 of the L.A.Act the State without deposit of the differential decretal amount can get order of stay of the execution proceeding ?

(ii) Whether in view of the Order 27, Rule 8-A, C.P.C. the State-appellant is exempted from depositing the differential decretal amount or security as envisaged under Order 41, Rule 1(3) and Rule 5 (5) of the C.P.C. ?

At the outset, it will be profitable to note the relevant provisions available in the C.P.C.

Order 41, Rule 1 (3) of the C.P.C. runs as follows:

“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.”

The relevant portion of Rule 5 of Order 41 runs as follows :

“5. Stay by Appellate Court -

xx xx xx xx

(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in order stay