B.P. Agarwal
& Anr Vs. Dhanalakshmi Bank Ltd. & Ors [2008] Insc 92 (25 January 2008)
Dr.
Arijit Pasayat & P. Sathasivam Dr. Arijit Pasayat, J.
1.
Challenge in this appeal is to the order passed by the Division Bench of the Kerala
High Court. By the impugned order the High Court in exercise of jurisdiction
under order XLI Rule 1(3) of the Code of Civil Procedure, 1908 (in short the
CPC) directed the appellant to deposit a sum of Rs.5,00,000/- in
trial court within a particular time. Appellants question the correctness of
the order on the ground that the High Court could not have referred to Order
XLI Rule 1(3) in the absence of any application for stay.
2.
Learned counsel for the respondents on the other hand supported the order of
the High Court.
3. Undisputedly,
in the present case there was no application for stay filed. A few decisions of
this Court being relevant need to be noted.
4. In Kayamuddin
Shamsuddin Khan v. State Bank of India [1998 (8) SCC 676] the dispute related to Order XLI Rule 1(3) it was
held that if the amount is not deposited, the appeal could be directed to be
dismissed. Obviously reference was to Order XLIII Rule 5(5). In paragraphs 6
and 8 this Court observed as follows:
6.
The learned counsel for the respondent has invited our attention to sub-rule
(3) of Rule 1 of Order XLI in the Code of Civil Procedure, as amended in the
State of Maharashtra, which reads as under:
(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:
Provided
that the Court may dispense with the deposit or security where it deems fit to
do so for sufficient cause.20;
8.
This would mean that non-compliance with the direction given regarding deposit
under sub-rule (3) of Rule 1 of Order XLI would result in the Court refusing to
stay the execution of the decree. In other words, the application for stay of
the execution of the decree could be dismissed for such non-compliance but the
Court could not give a direction for the dismissal of the appeal itself for
such non- compliance.20;
5.
Similarly, in Devi Theatre v. Vishwanath Raju [2004 (7) SCC 337] it was inter alia
observed as follows:
5.
The learned counsel for the appellant submits that appeal lies from every
decree passed by any court exercising original jurisdiction. The jurisdiction
of the court in first appeal extends to examine the questions of facts as well
as that of law. It is though true as pointed out by the learned counsel for the
respondent that under Order 41 Rule 11 CPC it would be open for the court to
dismiss the appeal in limine at the time of admission but even examining the
matter from that point of view we find that the court while considering the
question of admission of appeal filed under Section 96 CPC, may admit the
appeal if considered fit for full hearing having prima facie merit. Otherwise,
if it finds that the appeal lacks merits, it may be dismissed at the initial
stage itself. But admission of the appeal, subject to condition of deposit of
some given amount, is not envisaged in the provision as contained under Section
96 read with Order 41 Rule 11 CPC. The deposit of the money would obviously
have no connection with the merits of the case, which alone would be the basis
for admitting or not admitting an appeal filed under Section 96 CPC. Further,
imposition of condition that failure to deposit the amount would result in
dismissal of the appeal compounds the infirmity in the order of conditional
admission.
6. It
is a different matter, in case the appellant prays for stay of the execution of
the decree or for any order by way of an interim relief during the pendency of
the appeal; it is open for the court to impose any condition as it may think
fit and proper in the facts and circumstances of the case. Otherwise imposing a
condition of deposit of money subject to which an appeal may be admitted for
hearing on merits, is not legally justified and such order cannot be
sustained.20;
6. In
the instant case there is no direction that in case of non-payment, the appeal
is to be dismissed. In the absence of any application for stay the High Court
could not have passed the order impugned. The direction for deposit as given
accordingly stands vacated.
7. The
appeal is allowed but without any order as to costs.
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