JUDGMENT

DR. B.R. SARANGI, J.-

The Defendant, being the Petitioner, has filed this Writ Petition challenging the Order Dated 16.07.2010 passed by Learned Addl. District Judge, Jharsuguda in RFA NO.20 of 2009 directing the Petitioner to deposit arrear rent of Rs.3,000 & mesne profit @ RS.2,000 per month from May, 2008 to 30th June, 2010 before the lower Court as a condition for entertaining the appeal under Order 41, Rule 5(c) of the Code of Civil Procedure (in short, 'CPC').

2. The Opp. Party, being the Plaintiff, filed a suit bearing C.S. NO.15 of 2008 before the Learned Civil Judge, (Jr. Division), Jharsuguda for eviction from the suit house & give delivery of possession of the same through Court along with arrear rent & mesne profit. The Defendant contested the suit. However, the suit was decreed in favour of the Plaintiff directing the Defendant to give vacant possession of the suit house within one month from the date of order & further directed to pay arrear rent of Rs.3,000 & mesne profit @ RS.2,000 per month from May, 2008 onwards. Against the said Judgment & decree passed by the Learned Civil Judge, (Jr. Division), Jharsuguda in C.S. NO.15 of 2008, the Defendant preferred an appeal bearing RFA NO.28 of 2009 before the Learned Addl. District Judge, Jharsuguda & also filed an application for stay of further proceeding in execution case. The Learned Appellate Court while considering such application for stay of execution, passed the impugned Order Dated 16.07.2010 directing to deposit the entire decreetal amount, which is impugned in this Writ Petition.

3. Mr. P.K. Rath, Learned Counsel appearing for the DefendantAppellant states that direction given by the Learned lower Appellate Court for deposit of the entire decreetal amount as a pre condition for grant of stay of execution of proceeding is not inconformity with the provisions of Order 41, Rule 1 (3), CPC & Order 41 Rule 5, Sub-Rule-3, CPC. To substantiate his contention, he has relied upon the Judgment in Hadinabdhu Senapati V. Smt. Chamamani Behera AIR 1996 Orissa, 84.

4. Mr. B. Parida, Learned Counsel for the Opp. Party strenuously urged that since It is a suit for eviction, the condition imposed by the Learned Appellate Court is well within his competence & is in conformity with the provisions contained under Order 41 Rule 1 (3) CPC read with Order 41, Rule 5(3), CPC & no illegality or irregularity has been committed by the Learned lower Appellate Court by imposing condition for deposit of entire deceetal amount for grant of stay of execution proceeding pending before the Learned Court below. To substantiate his contention, he has relied upon the Judgments in Hardayal v. Surja Ram AIR 1977 Punjab & Haryana 259 & in Daitary Nayak v. Srikanta Mohapatra, AIR 1992 Orissa, 39.

5. The provisions contained under Order 41, Rule 1, SubRule-3, CPC & Order 41 Rule 5, Sub-Rule-3, CPC are quoted below.

Order 41, Rule-1, Sub-Rule-3:- "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. Order 41, Rule-5, Sub-Rule-3 :

"No order for stay of execution shall be made under subrule (1) or sub-rule (2) unless the Court making it is satisfied

(a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) that the application has been made without unreasonable delay; &

(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him."

6. Order 41, Rule 1 (3), CPC states 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 thereof as the Court may think fit. The said provision relates to filing of appeal, which is not the case here r