The main legal point established in the judgment is that the power of the court is circumscribed under Rule 5(5) of Order 41 C.P.C., and non-compliance with the direction of the court under Order 41 Rule 1(3) does not invite any consequence beyond what is provided in the statute.

JUDGMENT :

Dr. A.K. Rath, J.

By this application under Article 227 of the Constitution of India, challenge is made to the order dated 22.6.2015 passed by the learned 1st Additional District Judge, Rourkela in R.F.A. No.06 of 2015, whereby and whereunder learned appellate court dismissed the appeal for non-depositing of security amount of Rs.2 lakhs.

2. The petitioner was an employee of the opposite party. He was residing in a quarter provided by the employer. He retired from services on 31.01.2001. Since he did not vacate the quarter, the opposite party as plaintiff instituted C.S. No.114 of 2009 in the court of the learned Civil Judge (Sr. Divn.), Rourkela for eviction and recovery of house rent impleading the petitioner as defendant. The defendant filed a counter claim. The suit was decreed. Learned trial court directed the defendant-petitioner to deliver the vacant possession of the premises and to pay Rs.3,87,181/-which includes arrear house rent, electricity charges and damages within three months. He filed R.F.A. No.6 of 2015 before the learned Additional District Judge, Rourkela. There was delay in filing the appeal. An application for condonation of delay was filed. On 16.5.2015, the learned 1st Additional District Judge, Rourkela directed the petitioner to furnish a bank security of Rs.2 lakhs as a condition precedent for admitting the appeal, failing which the appeal shall stand dismissed. Since the amount was not deposited by 22.6.2015, the appeal was not admitted. This petition seeks to lacinate both the orders.

3. Heard Mr. B.S. Rayaguru, learned counsel for the petitioner and Mr. S.K. Sarangi, learned counsel for the opposite party.

4. Mr. Rayaguru, learned counsel for the petitioner submitted that the appeal is a valuable right. For non-furnishing of security amount, the court may not grant stay of execution, but cannot dismiss the appeal. He relied on the decision of the apex Court in the case of Union of India vs. K.V. Lakshman and others, (2016) 13 SCC 124 and this Court in the case of Jugal Kishore Meher vs. Bijaya Kumar Agarwalla, 80 (1995) C.L.T. 978.

5. Per contra, Mr. Sarangi, learned counsel for the opposite party submitted that there was delay in filing the appeal. In view of the same, learned appellate court directed the petitioner to furnish a bank security of Rs.2 lakhs within a stipulated time. The petitioner failed to comply the said order. Learned appellate court has rightly not admitted the appeal. He further submitted that in a money decree, the court can grant stay of execution on imposition of certain conditions.

6. In Union of India (supra), the apex Court held thus:

“21. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first appellate court while hearing the first appeal is very wide like that of the trial court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first appellate court to appreciate the entire evidence and may come to a conclusion different from that of the trial court.

22. Similarly, the powers of the first appellate court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue.

23. As far back in 1969, the learned Judge—V.R. Krishna Iyer, J. (as his Lordship then was the Judge of Kerala High Court) while deciding the first appeal under Section 96 CPC in Kurian Chacko v. Varkey Ouseph, reminded the first appellate court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned Judge held as under:(SCC On Line Ker paras 13)

“1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession.