ORDER

Misc. Case No. 19 of 2004

20.2.2004 — This is an application for vacating and modifying the order dated 14.1.2004 passed in Misc Case No. 216 of 2003. By the said order, the Court directed adinterim stay of further proceeding in Execution Case No.18 of 2003 on the file of the learned Civil Judge (Sr. Divn.), Bhubaneswar until further orders subject to cash deposit of 50% of the decretal dues by the appellants in shape of demand draft and bank guarantee for the remaining amount before the executing Court.

The respondent supplied some goods to the appellant and was paid part of the price of the goods. For the balance price, the respondent moved this Court in O.J.C. No.5565 of 1994 which was disposed of by order dated 14.11.1995 with a direction to the appellant to pay a sum of Rs. 66,09,699.36 to the respondent. Against the order of this Court, the appellant filed a Special Leave Petition SLP (C) No. 5239 of 1995 and the Supreme Court disposed of the matter with the direction that he appellant shall pay a sum of Rs. 23 lakhs to the respondent as the said amount is not disputed and the respondent will file a regular suit before the Civil Court for rest of the claim. Pursuant to the said order passed by the Supreme Court, the respondent filed Money Suit No. 311 of 1996 before the learned Civil Judge (Senior Division), Bhubaneswar for realization of the principal amount of Rs. 43,09,699.26p with interest at the rate of 22% per annum and in the said suit, the appellant also filed a counter claim of Rs. 19,43,007/- with interest at the rate of 22% per annum and by judgment and decree dated 14.11.2002, the learned Subordinate Judge, Bhubaneswar now Civil Judge (Senior Division), Bhubaneswar decreed the claim of the respondent towards the principal amount of Rs. 43,09,699.36p with interest at the rate of 17% per annum from 1.10.1992 till the date of actual payment but dismissed the counter claim of the appellant. The appellant has filed this appeal against the said judgment and decree of the learned Civil Judge (Senior Division), Bhubaneswar.

Mr. Gangadhar Rath, learned counsel for the respondent submitted that Rule 1 in Order 41 of C.P.C. a new Sub-rule (3) has been inserted in 1976 providing that where the appeal is decreed against the payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish a security in respect thereof as the Court may think fit. Mr. Rath argued that although it is provided in Order 27 Rule 8(A) of the C.P.C. that no security as mentioned in Rules 5 & 6 of Order 41 shall be required from the Government or from any public officer in respect of an act al¬leged to be done in his official capacity there is no mention in the said provision in Order 27, Rule 8(A) of the C.P.C. that in case of a decree for payment of money against the Government or public officer, the Court will not insist upon deposit of amount disputed in the appeal in accordance with Order 41, Rule 1of Sub-rule (3) of the C.P.C. According to Mr. Rath even in a case as in the present one, where an appeal has been filed against a decree for payment of money by the Central Government, the provisions of Order 41, Rule 1 of Sub-rule (3) are applicable and the Appellate Court should direct deposit of the amount disputed in appeal by the appellant. He further submitted that since the respondent is a business concern requiring funds for its business, the respon¬dent should be allowed to withdraw the amount so deposited by furnishing bank guarantee.

Mr. P. N. Mohapatra, learned counsel appearing for the appellant, on the other hand, submitted that the claim of the respondent in the suit was fraudulent and, in fact, the respon¬dent-V.N. Enterprises does not exist any longer. He further submitted that in case the Court directs deposit of the amount decreed and allows the respondent to withdraw the amount deposit¬ed in Court, the appellant will suffer immense prejudice, if t