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Mohd. Abdus Samad Vs. Mahboobunnisa Begum - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1261 of 1969
Judge
Reported inAIR1970AP210
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 5 and 5(3)
AppellantMohd. Abdus Samad
RespondentMahboobunnisa Begum
Appellant AdvocateMizra Munawar Ali Baigh, Adv.
Respondent AdvocateS. Mazhar Hussain, Adv.
Excerpt:
.....(1) or sub-rule (2) unless the court making it is satisfied- x x x x (c) that security has been given by the applicant for the due performance of such decree order as may ultimately be binding upon him'.a careful reading of sub-rule (1) and sub-rule (3) of rule 5 of order 41, civil p. the language of sub-rule (3) is emphatic and imperative, which categorically lays down that no order for stay of execution shall be made unless the court is satisfied that security has been given by the applicant for the due performance of a decree which may ultimately be binding upon him; knahaialal dhanaram, air 1947 nag 26. it is thus clear that the appellate court without being satisfied that the security has been given as is required under sub-rule (3), clause (c) of the said rule will not be..........cause, order stay of execution of such decree, and may, when the appeal is against a preliminary decree stay, the making of the final decree in pursuance of the preliminary decree or the execution of any such final decree, if already made.x x x x x x x x (3) no order for stay of exectuion shall be made sub-rule (1) or sub-rule (2) unless the court making it is satisfied- x x x x(c) that security has been given by the applicant for the due performance of such decree order as may ultimately be binding upon him'.a careful reading of sub-rule (1) and sub-rule (3) of rule 5 of order 41, civil p.c., can leave on one in doubt that the appellant would not be entitled to have an order of stay without furnishing security for the due performance of the decree that may be ultimately binding upon.....
Judgment:

Gopal Rao Ekbote, J.

1. This revision petition arises out of an order passed by the First Additional Chief Judge, City Civil Court, Hyderabad, on 23-8-1967 in I. A. No. 545 of 1967 in A.S. No. 45 of 1967.

2. The necessary facts are that the respondent-plaintiff filed O.S. No. 8 of 1966 on the file of the Second Assistant Judge, City Court Hyderabad. It was alleged by her in the plaint that the defendant, her husband, had divorced her. She, therefore, sought to recover her meher, some jehza, articles or their value and also maintenance amount for the period of Iddat. The defendant, who is the petitioner before us, contested the suit. The suit was ultimately decreed on 21-12-1966. The defendant thereupon prefrred A. S. No. 45 of 1967. Along with the appeal, he filed I.A. No. 545 of 1967 under O. 41, R. 5 Civil P. C. He sought the execution of the decree to be stayed till the appeal was disposed of. This petition was resisted by the wife, who was the respondent in that appeal. Her contention was that since the husband has not furnished security as is required under O. 41, R. 5 (3) (c), Civil P. C., the petition was not maintainable. The learned Judge accepted this contention and held that the petition was not maintainable as the petitioner had not complied with the mandatory provisions of Order 41, R. 5 (3) (c), Civil P. C. Consequently, the petition was dismissed. It is this order that is now challenged in this revision petition.

3. The civil revision petition first came before Basi Reddy, J. (as he then was). By his order dated 21-2-1968 the learned Judge directed the C.R.P. to be posted before a Bench and that is how it has come before us.

4. Now, O. 41, R. 5, Civil P.C., relates to the stay of the execution of the decree by an appellate Court. In so far as it is relevant, it reads as follows:-

'(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, not 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, and may, when the appeal is against a preliminary decree stay, the making of the final decree in pursuance of the preliminary decree or the execution of any such final decree, if already made.

x x x x

x x x x

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

x x x x

(c) that security has been given by the applicant for the due performance of such decree order as may ultimately be binding upon him'.

A careful reading of sub-rule (1) and sub-rule (3) of Rule 5 of Order 41, Civil P.C., can leave on one in doubt that the appellant would not be entitled to have an order of stay without furnishing security for the due performance of the decree that may be ultimately binding upon him. The language of sub-rule (3) is emphatic and imperative, which categorically lays down that no order for stay of execution shall be made unless the Court is satisfied that security has been given by the applicant for the due performance of a decree which may ultimately be binding upon him; in other words, the decree under appeal. This provision is couched in mandatory language and unless the Court finds that security has been furnished by the applicant, no order of stay of execution can be made under sub-rule (1) by the Appellate Court. This view is supported by the following decisions: Sundaram Chettiar v. Valli Ammal, AIR 1935 Mad 43 and Dadoo Balaji v. Knahaialal Dhanaram, AIR 1947 Nag 26. It is thus clear that the Appellate Court without being satisfied that the security has been given as is required under sub-rule (3), clause (c) of the said rule will not be empowered to make an order for stay of the execution of the decree under sub-rule (1) of that Rule.

5. This is far form saying that the application under Order 41, Rule 5, Civil P.C., would not be maintainable unless security is filed. The application can be filed by the appellant under that rule. What the rule says is that before any order for the stay of execution is made, the Court ought to satisfy itself that proper security is given by the appellant. In other words, it is not that the application is not maintainable, but order on any such application can be made by the Court could have directed the appellant to furnish the security as is required under Order 41, Rule 5 (3) (c), Civil P.C., before the application could be considered on its merits under that rule. No such opportunity was given to the appellant. Since we are of the opinion that the application cannot be summarily rejected on the ground that it is not maintainable, we would allow the revision petition, set aside the order of the Court below and direct it to give a reasonable opportunity to the petitioner to furnish security. After the security is furnished, it is open to the Court to consider the application filed under Order 41, Rule 5, Civil P.C., in the light of the objections raised by the decree-holder and decide it in accordance with law. In the circumstances of the case, however, we make no order as to costs.

6. Petition allowed.


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