Rule 8A of Order 27, CPC exempts the Government from furnishing security for the due performance of a decree as a condition of grant of stay under Order 41, Rule 5, CPC, and this exemption applies to the Collector, as a representative of the State Government.

JUDGMENT :

S.K. Ray, C.J. - The question whether the Appellant who is the Collector of Cuttack shall be required to furnish security for the due performance of the decree under appeal while granting stay of execution of the decree was mooted before the Registrar. Having regard to the importance of the question, he, by his order dated 7-5.80, placed the matter before the Bench for orders. This question was argued by the learned Counsel for the parties on 14-5-1980. We reserved passing of final order in the matter. We now proceed to deal with the question.

2. This appeal is directed against the decree passed in L.A. Misc. Case No. 12 of 1975 which had been registered on a reference being made by the Land Acquisition Collector (here after referred to as Collector) u/s 18 of the Land Acquisition Act for determination of the market value of the acquired land. The Subordinate Judge who disposed of the case determined the market value to be Rs. 31,625.00. The Collector had determined the value to be Rs. 3,968.85 and that amount had been received by the claimant under protest. The amount disputed in this appeal is, therefore, Rs. 27,656.15.

3. The Respondent decree-holder filed. Execution Case No. 256 of 1978 for realisation of the decretal amount. The Appellant, therefore, filed an application under Order 41, Rule 5, CPC for stay of further proceedings of the execution case. It gave rise to the aforesaid question as to whether the Appellant shall be called upon to furnish security as a condition of grant of stay.

4. The learned Counsel for the Appellant relies on Rule 8A of Order 27, CPC for the proposition that no security shall be required from the Government as a condition of grant of stay under Rule 5 of Order 41, Code of Civil Procedure. The learned Counsel for the Respondent resists this contention relying upon Sub-rule (3) of Rule 1 of Order 41. It was further contended that reading Sub-rule (3) of Rule 1 with Sub-rule (3) of Rule 5 of Order 41 it is clear that the Appellant, be he the State or a private party, is bound to furnish security for the due performance of the decree as may ultimately be binding upon him.

5. It is not disputed that even though the Collector conominee is the Appellant, he represents the State and, in essence, the State Government is the Appellant. Therefore the relevant rules referring to State Government would be applicable to this case. It is proper to extract the relevant rules. Order 41, Rule 1(3), CPC 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.

Rule 5 of Order 41, CPC so far as it is relevant, is extracted herein below:

(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

Explanation:....

(2)....

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

(a)....

(b)....

(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.

(4)....

(5) Notwithstanding anything contained in the foregoing sub-rules, where the Appellant fails to make the deposit or furnish the security specified in Sub-rule (3) of Rule 1, the Court shall not make an order staying the execution of the decree.

Rule 8A of Order 27, CPC runs as follows:

No such security as is mentioned in Rules 5 and 6 of XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.

6. B