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Bansidhar Vs. Pribhu Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 237 of 1952
Judge
Reported inAIR1954Raj1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 51 - Order 41, Rule 5
AppellantBansidhar
RespondentPribhu Dayal
Appellant Advocate R.K. Rastogi, Adv.
Respondent Advocate R.A. Gupta, Adv.
DispositionApplication dismissed
Cases ReferredAnandi Prashad v. GovindaBapu
Excerpt:
.....for staying the execution. sub-rule 3 further provides that no order for stay of execution shall be made under sub-rule 1 or sub-rule 2 unless the court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made. the kind of loss must be specified, details must be given, and the conscience of thecourt must be satisfied that such loss will reallyensue. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court for reasons recorded in writing, is satisfied,-(a) that the judgment-debtor, with the object or effect of obstructing or delaying the..........m. s. periasamy mudaliar', air 1952 mys 78 (c). in the former case it was held that 'the court can stay execution of money decree pending appeal on such security as it deems fit in proper cases in which sufficient cause for a stay has been made out. without requiring in all cases that the decree amount should be deposited in court.' this view was followed in the latter case where it was further observed that 'order 41, rule 5 cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in the matter of stay pending appeal. therefore, there could be no restriction on the discretion of the court for staying' a decree for payment of money in suitable cases where the court is satisfied that substantial loss.....
Judgment:

Dave, J.

1. This case comes today for determination of the appellant's application under Order 41, Rule 5, Civil P. C. The respondent had filed a suit against the appellant in the Court of the Civil Judge, Alwar for Rs. 3437/8/- on account of the loss sustained by him for alleged breach of contract committed by the appellant in refusing to take delivery of the goods. The trial Court dismissed the suit but on the plaintiff's appeal to the District Judge, Alwar, a decree for Rs. 2750/- with proportionate cost in both the Courts has been given in his favour. The defendant has, therefore, come here in second appeal and presented a petition for staying the execution of the decree pending the decision of this appeal. On 29-8-1952, notice was issued to the opposite party to show cause why the stay application be not allowed, and an ad interim order to stay the execution was passed on that date. The appellant's learned advocate wants the order to be made absolute while the respondent's learned advocate seriously contests it on the ground that the appellant has sufficient means to pay up the decree and no substantial loss is likely to occur to him.

2. It appears from the appellant's application dated 29-8-1952, that he has requested for staying the execution on the following grounds: .

'1. that the appellant has no ready money topay and at the same time payment of theheavy sum is difficult in these days of financial stringency.

2. that if the appellant transfers his property it snail fetch a very low price below the fair one and he will suffer substantial loss.

3. If the appellant is arrested and sent to Civil prison he will lose all his business and reputation.'

3. In support of his application he has filed an affidavit. The respondent on the other hand has stated in his reply that it is entirely incorrect to say that the appellant is unable to make payment of the decretal amount. It is alleged that the marketable goods and cash in addition to his immovable property and jewellery are in no way less than 50,000 rupees, and that he is carrying on business in Alwar market on a large scale. He has also filed his own affidavit and also three other affidavits of Ramji Lal, Kedar Nath and Ladu Ram to the same effect. He has argued that this is only a money decree against the appellant and this Court should not stay the proceedings. In support of his argument he has referred to the case of -- 'Dhunjibhoy Cowasji Umrigar v. Lisboa' 13 Bom 241 (A), where it was held that

'A party appealing against a decree, which directs him to pay money, may obtain stay of execution of decree, so far as it directs payment on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted.'

The appellant's learned advocate contends that under Order 41, Rule 5 the law makes no distinction between money decrees and other kinds of decrees and that in case a judgment-debtor suffers substantial loss on account of execution of the decree the appellate Court should stay the execution. He has referred to the case of -- 'A. A. Khan v. Ameer Khan', AIR 1950 Mys 11 (B) and -- 'Movie Enterprises v. M. S. Periasamy Mudaliar', AIR 1952 Mys 78 (C). In the former case it was held that

'The Court can stay execution of money decree pending appeal on such security as it deems fit in proper cases in which sufficient cause for a stay has been made out. without requiring in all cases that the decree amount should be deposited in Court.'

This view was followed in the latter case where it was further observed that

'Order 41, Rule 5 cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in the matter of stay pending appeal. Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. In this view, it. cannot be contended that a decree directing payment of money should not be stayed unless the decree amount is lodged into Court.'

4. I respectfully agree with the learned Judges of the Mysore High Court that Order 41, Rule 5 does not make any distinction between money decrees and other decrees and the powers of the appellate Court to order stay of execution of money decree is not fettered in case there is sufficient cause for passing such an order.

5. In the present case, however, I find that I the appellant has not been able to make out sufficient cause for staying the execution. The first ground, namely, that the appellant has no ready money and that there is a general financial stringency is very vague and unconvincing. The appellant may not be in possession of cash but he should have disclosed his assets and liabilities or he should have given a detailed account of his financial position for this Court to judge whether he had other property sufficient to pay up his decretal amount without any hardship. The mere reference to present financial stringency is to my mind of no avail for staying the execution of the decree. If this ground alone is allowed to prevail then every judgment-debtor would be able to get the execution of the decree stayed in appeal without further proving that such execution would result in substantial loss to him. Under Order 41, Rule 5 'an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order and the section further lays down that execution of a dceree shall not be stayed by reason only of an appeal having been preferred from the decree'. In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause and the appellate Court considers it sufficient for staying the execution. Sub-rule 3 further provides that no order for stay of execution shall be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made.

6. In the case of -- 'Anandi Prashad v. GovindaBapu', AIR 1934 Nag 160 (D), it was observed bythe learned Judge Vivian Bose A. J. C. that

'It is not enough merely to repeat the words of.the Code and state that substantial loss willresult; the kind of loss must be specified, details must be given, and the conscience of theCourt must be satisfied that such loss will reallyensue.'

It was further observed that

'the words 'substantial loss' cannot mean the ordinary loss to which every judgment-debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of excution as an ordinary rule, it is clear the words 'substantial loss' must mean something in addition to and different from that.'

7. It is abundantly clear that the appellant is not simply to show the balance of convenience in his favour nor it is sufficient for him to say that no harm would be done to the other party if the execution is stayed. In order to get the substantial loss i.e., it should be a loss more than what should ordinarily result from the execution of the decree in the normal circumstances. The first ground is, therefore, very vague. The second ground alleged by the appellant is equally vague because he has not disclosed what property he has got and why it will not fetch a fair price.

8. The last ground of the appellant that if heis arrested and sent to civil prison, he will loosehis business and reputation is worth consideration,but for the present there is no material beforethe Court to conclude that the appellant is notin a position to pay the money and that the executing Court will send him to civil prison. Thejudgment-debtor cannot be sent to civil prison atthe mere request of the decree-holder.

9. Section 51, Civil P. C. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied,--

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,--

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly, transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.'

10. The law has thus provided safeguards to protect an honest judgment-debtor who is really unable to pay up the decree. Learned counsel for the respondent has stated that in case the executing Court finds that the judgment-debtor is really not in a position to pay the decretal amount and if it still thinks of sending the appellant to civil prison, the appellant may apply for the stay of the execution and the respondent will have no objection to the stay being granted at that time. This is quite reasonable in my view. The appellant has not been able to make sufficient cause to stay the execution of the order at present and therefore, the order of this Court dated 29-8-1952 is vacated and the application is dismissed.

Ranawat, J.

11. I agree.


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