IMPORTANT POINT
(1) Stay of further proceeding of Execution Case—In cases where subject matter of suit is residential premises and judgment-debtor is residing in it, prayer for stay ordinarily be granted.

ORDER (ORAL)

Nawneet Kumar Pandey, J.—Learned counsel for the appellants are directed to remove all the defects pointed out by the Stamp Reporter within one month.

2. Heard learned counsel for the appellants as well as learned counsel for the respondents, on I.A. No. 01 of 2021 filed on behalf of the appellants under Order XLI Rule 5 for stay of the further proceeding of Execution Case No. 01 of 2015.

3. This second appeal was admitted vide order dated 03.03.2022.

4. The application for stay has been opposed by the learned counsel for the respondents on two grounds:-

(i) The proper security has not been given in accordance with order XLI Rule 5 sub-rule 3(c) of the Code of Civil Procedure 1908 (hereinafter referred as ‘the Code’).

(ii) That this court passed an order dated 08.03.2022 staying the further proceeding of the case for 15 days, which has been elapsed and no prayer has been made to extend it.

5. So far as the first ground is concerned the learned counsel for the appellants, relying upon a decision of this Court reported in the case of Smt. Drogni Devi Vs. Most. Surati Devik and others 1991 PLJR (1) page 26, has submitted that the security is not essential in a case of eviction. It depends upon nature of the case. In paragraph no. 5 of the decision, this Court has observed as follows:-

“A Simple reading of clause (c) of sub-rule 3 makes it clear that the security is required to be deposited “for the due performance of such a decree.” In the present case the due performance of the decree passed by the lower court is merely eviction, nothing more, obviously, if the appellants lose the case here, then by execution the eviction can be achieved under the due process of law. As such, there is absolutely no necessity of making any security deposit “for the due performance of the decree” as mentioned in clause (c) of sub-rule 3 of Rule 5 of order 41.”

6. In reply thereof, the learned counsel for the respondents has cited two decisions, the first, AIR 1935 Madras 43 (Sundaram Chettiar Vs. P.A. Valli Ammal), the Hon’ble Madras High Court has been pleased to hold as follows:-

“I am therefore of the opinion though, as I said before, I came to this opinion with some hesitation, that it is incompetent in such a case as this for the Appellate Court to entertain an application for stay of proceedings under Order XLI Rule 5, Civil Procedure Code. At the same time sub Clause (3) of that rule prevents an order for stay of execution being made unless security has been given by the appellant for the due performance of such decree or order as may ultimately be binding upon him.”

7. The second decision is the case of Hadibandhu Senapati and another Vs. Smt. Champamani Behera and others (AIR 1996 Orissa page 85). The relevant paragraph no. 4 of that decision is as follows:-

“4. Rule 5 of Order 41, CPC relates to stay of proceedings and of execution. By the Amendment Act 104 of 1976 an Explanation has been added to sub-rule (1) to provide that an order for stay of execution made by the appellate Court operates only from the time it is communicated to the executing Court. After an appeal has been filed the appellate Court may order the stay of proceedings under the decree or of execution of such decree. Obviously the rule will apply only when the decree under appeal is capable of execution. The provisions of sub-rule (3) of Rule 5 are mandatory, and therefore, conditions prescribed in clauses (a), (b) and (c) thereof must be fulfilled before granting a stay. The power to grant stay of execution on sufficient cause being shown is controlled by sub-rule (3) and each of the three conditions specified therein must be satisfied before stay is granted. Execution should not be stayed unless the Court is satisfied that substantial loss may otherwise result to the judgment-debtor, and the application is made without unusual delay. The amount deposited as security under Rule 5 does not ipso facto without an order of Court, become the property of