Case Note & Summary
The petitioners/defendants challenged an order dated 18/06/2010 passed by the first appellate court directing them to deposit the decreetal amount of Rs.5,00,010.30 with interest at 18% per annum. The respondents/plaintiffs had filed an application under Order 41 Rule 1(3) CPC, though the defendants had not filed any application for stay of execution. The High Court held that Order 41 Rule 1(3) CPC applies only when the appellant seeks stay of execution and the court imposes a condition for such stay. Since no stay application was filed by the defendants, the appellate court could not direct deposit. The court relied on B.P. Agarwal v. Dhanalakshmi Bank Ltd. (AIR 2008 SC 1431) and Kayamuddin Shamsuddin Khan v. State Bank of India (1998 (8) SCC 676) to hold that the condition of deposit cannot be imposed without a stay application. The impugned order was set aside, and the writ petition was allowed.
Headnote
A) Civil Procedure - Stay of Execution - Order 41 Rule 1(3) CPC - Condition for Stay - The first appellate court cannot direct deposit of decreetal amount under Order 41 Rule 1(3) CPC unless the appellant has filed an application for stay of execution. The provision applies only when the appellant seeks stay and the court imposes a condition. In the absence of any stay application, the order directing deposit is without jurisdiction. (Paras 2-5)
Issue of Consideration
Whether the first appellate court could direct the defendants to deposit the decreetal amount under Order 41 Rule 1(3) CPC when no application for stay of execution was filed by the defendants.
Final Decision
The impugned order dated 18/06/2010 is set aside. The writ petition is allowed. Rule made absolute.
Law Points
- Order 41 Rule 1(3) CPC
- stay of execution
- deposit of decreetal amount
- condition for stay
- no stay application filed
Case Details
2010 LawText (BOM) (08) 128
Writ Petition No.507 of 2010
Mr. Anthony D'Silva for Petitioners, Mr. V. Menezes for Respondents Nos.1 & 2
M/s. Maizons Coastline Developers Pvt. Ltd., Shri Pradeep Pundalik Ghadi Amonkar, Shri Sunil Dattaram Divkar
Mr. Santan Jovito Monteiro, Mrs. Joy Monteiro, Economic Development Corporation Ltd.
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Nature of Litigation
Writ Petition challenging order of first appellate court directing deposit of decreetal amount under Order 41 Rule 1(3) CPC.
Remedy Sought
Petitioners sought quashing of order dated 18/06/2010 directing deposit of decreetal amount.
Filing Reason
The first appellate court directed deposit of decreetal amount even though no stay application was filed by the defendants.
Previous Decisions
The first appellate court passed order dated 18/06/2010 on application filed by plaintiffs under Order 41 Rule 1(3) CPC.
Issues
Whether the first appellate court could direct deposit of decreetal amount under Order 41 Rule 1(3) CPC without a stay application by the appellant.
Submissions/Arguments
Petitioners argued that no stay application was filed, so no order for deposit could be made. Relied on B.P. Agarwal v. Dhanalakshmi Bank Ltd. and Kayamuddin Shamsuddin Khan v. State Bank of India.
Respondents argued that the cited cases deal with appeals at admission stage and are not applicable. Relied on Bhogvati Sahakari Sakhar Karkhana Limited v. M/s. Chaugule & Sons.
Ratio Decidendi
Order 41 Rule 1(3) CPC applies only when the appellant seeks stay of execution. The court cannot impose a condition of deposit unless the appellant has filed an application for stay. In the absence of such application, the order directing deposit is without jurisdiction.
Judgment Excerpts
There is no dispute that the respondents/plaintiffs have filed an application for execution of the said decree and the same is pending.
Shri D'Silva, learned Counsel ... submits that there was no application filed by the defendants for stay of execution and, therefore, no order could have been made by the learned first appellate Court to deposit the decreetal amount.
Procedural History
The defendants filed first appeal which was admitted by the High Court and later sent to District Court due to amendment. On 11/06/2010, plaintiffs filed application under Order 41 Rule 1(3) CPC. The first appellate court allowed the application on 18/06/2010 directing deposit. Defendants challenged this order by way of writ petition.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 41 Rule 1(3)
