1. The short but rather important point which is raised in this Revision is whether decretal amount has to be deposited or security has be furnished in the appellate Court as a condition precedent for hearing and disposal of the appeal within the meaning of sub-rule (3) of Rule 1 of Order 41 of the Civil P.C.? The facts are very few. The revisionist herein obtained a decree which is admittedly a money decree. As against that, he preferred an appeal canvassing the correctness with regard to the principal amount only, whereas the respondent-judgment-debtor preferred an appeal contesting the interest part of it. In the said appeal an interlocutory application was filed by the revisionist herein seeking a direction from the court that the judgment-debtor must either deposit the amount covered by the decree or furnish security as a condition precedent for the numbering or entertaining the appeal. The appellate Court negatived the request of the revisionist herein by holding that the appeal was certainly maintainable and it was nevertheless open to the decree holder to proceed, if he so felt expedient, with the executive of the decree by filling execution petition within the meaning of sub-rule (5) of R.5 of O.41 of the Civil P.C. Hence this revision.
2. Sri Y. G. Krishna Murthy, the learned counsel for the petitioner, solely confined his contention to the aspect that through the appeal is maintainable, the same cannot be heard and disposed of until and unless the judgment-debtor deposits the amount covered by the decree or furnishes security for the same I see no force in this contention. Before adjudicating the relevant provisions may be read:
'Order 41, R.1 (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.'
'Order 41, R. 5(5) : Not withstanding 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 R. 1 the Court shall not make an order staying the executive of the decree.'
It is true the word 'shall' has been employed in sub-rule (3) of R.1 of O.41. C. P. C. making it appear as though it is mandatory that the appellant will have to deposit the amount covered by the decree, if it is a money decree, in the appellate court when an appeal is sought to be preferred against. But in my judgment, though this provision has been brought in for the first time by the Amending Act 104 of 1976, nevertheless the Legislature has not brought in the consequential provision as to what should happen in case the appellant does not either deposit the amount or furnish security and therefore inferentially it should be presumed that the legislature did not intend to penalise in case the said provision is not complied with. In these circumstances, the word 'shall: has to be considered as 'may'. There is yet another answer which is found in sub-rule (5) of R.5 of O. 41. C. P. C which saves the decree-holder from his decree being stultified or he being deprived of his right because for some reason or the other if the judgment debtor does not comply with the provisions enacted in sub-rule (3) of T.1 of O.41 C. P. C. then certainly it is open to the decree-holder to file an execution petition and have the decree executed. Sri Sitarama Raju, the learned counsel for the respondents, referred to the decision reported in Union Bank of India v. Jagan Nath Radhey Shyam & Co., : AIR1979Delhi36 , wherein the Learned Single Judge of the Delhi High Court, after referring to the Joint Committee report which was concerned with the Amendment Bill of the Civil P.c. which was Bill No.27 of 1974 and adverting to CI.87 (original Clause 90) which read :
'The Committee note that under the proposed new sub-rule (1A) of Rule 3 in Order XLI, if the appellant fails wither to deposit the amount disputed in the appeal or to furnish security for such amount, the memorandum of appeal shall be rejected. The Committee feel that such a provision will deprive a judgment-debtor having a good case, to pursue the appeal on account of his inability to deposit the disputed amount or to furnish security for such amount. The Committee is, therefore, of the opinion that in order to see that justice is done to both the parties, the proposed sub-rule might be amended in such a way that neither the judgment-debtor is deprived of has right to pursue the appeal nor the decree-holder is deprived of the remedy. Proposed sub-rule (1A) has been amended to provide that stay granted unless the deposit is made or security is furnished and has been transposed as sub-rule (3) of Rule 5.'
Held that a bare reading of the report of the Joint Committee and thereafter the omission of R. 1A from O.41 as proposed in the Bill clearly shows that the intention of the Parliament was not to make the deposit of the decretal amount or the furnishing of the security before filling of appeal against money decree as a condition precedent for valid presentation of the appeal. I am in respectful agreement with this ratio. As a corollary therefore it equally follows that what could be a condition precedent for filling the appeal cannot equally be allowed to be a condition precedent for final adjudication as well. Hence the contention of the learned counsel for the petitioner fails and is rejected.
3. The Civil Revision Petition is dismissed. No costs.