C.K. Banerji, J.
1. This application has now come up before us for final disposal. The suit herein was instituted by the respondent No. 1 against the appellant and respondent No. 2 inter alia, for recovery of Rupees 1,13,490.00. The respondent No. 1 thereafter made an application in the suit for a final judgment for the amount claimed in the suit under Chap. XIIIA of the Rules of the Original Side of this Court, which was opposed by the appellant. On the 15th June, 1982, the learned trial Judge after bearing the parties, made an order granting the appellant leave to defend the suit upon furnishing security to the satisfaction of the Registrar Original Side of this Court for Rs. 75,000.00 within four weeks from date and in default of the appellant furnishing such security as aforesaid, there would be a decree in favour of the respondent No. 1 for Rs. 90,000.00 with interim interest and interest on judgment at 10% per annum and costs. In the event of the security being furnished costs would be costs in the suit and the rest of the claim of the respondent No. 1 would be tried and the appellant would be entitled to raise his defence by way of counter-claim or set off.
2. On or about 13th July, 1982 the appellant made an application before this Bench praying for admission of the appeal from the said Order dated 15th June, 1982 made by the learned trial Judge without being accompanied by a certified copy of the said Order and also for stay of operation of the said Order. The said application was made upon notice to the respondents. Upon hearing the parties, this Bench made an order on the 13th July, 1982 admitting the appeal from (the order?) and also granted an ad interim stay of the said order upon the appellant depositing Rs. 50,000.00 in cash with its advocate on record on or before the 16th July, 1982 which sum was to be held by the said advocate free from lien and subject to further orders of this Court.
3. The appellant, however, did not make the said deposit as directed by this Court. The said application came up for hearing and was heard by this Bench on the 27th July, 1982, but inasmuch as the appellanthad not made the deposit as directed by us by our order dated 13th July, 1982 the default clause as contained in the said order of the learned trial Judge became operative a decree had been passed against the appellant in the suit herein. This Court therefore, declined to make any further order on the said application which was disposed of accordingly. In the meantime the said decree was drawn up, completed and filed by the respondent No. 1, who got the said decree transferred to the City Civil Court at Mad-ras and the application for execution was made by the respondent No. 1 in the City Civil Court at Madras. The present application has been made by the appellant on or about 28th Sept., 1982, inter alia, for leave being granted to the appellant to deposit a sum of Rs. 50,000.00 with its present advocate on record; for stay of operation of the decree dated 15th June, 1982 upon deposit being made; for an injunction restraining the respondent No. 1 from enforcing the order and/or decree dated 15th June, 1982 without the leave of this Court and, if necessary, the order dated 13th July, 1982, made by this Bench be recalled and/or modified and/or amended suitably and the time to deposit the money in terms of the said order dated 13th July, 1982 be extended.
4. In paras 26 and 27 of the petition the appellant has sought to explain its inability to make the deposit as directed by this Court by its order dated 13th July, 1982. It is stated that the appellant had certain huge financial commitments regarding its business which did not permit it to make any deposit of money as directed by the said order dated 13th July, 1982 although it had no intention of not complying with the said order. Moreover, Shew Bhagwan Goenka and Executive Director of the appellant who looks after all its financial matters, was out of India for some time so that no prompt decision could be taken on the subject inasmuch as by business arrangement all matters regarding financial transactions are left entirely under the control and charge of the said Goenka. In the particular facts and circumstances of the case other persons looking after the other departments of the appellant were not authorised to take any decision on the point. The further case of the appellant is that it was advised by its legal advi-sers in Madras that the High Court at Calcutta had no jurisdiction to try the matter which point was bound to succeed in this Court before the appellate Coupt. in the above facts and circumstances, the appellant could not deposit the money within thetime as allowed by this Bench by its Order dated 13th July, 1982. According to the appellant the delay in making this application was occasioned by successive change of its advocate on record and it was only after Goenka joined the appellant's office the entire question of furnishing security was gone into at a meeting held on or about 16th Aug., 1982, wherein it was decided that the Appellate Court be approached for extension of time to furnish the security as directed by the order dated 13th July, 1982, and accordingly instructions were given to its the then advocates on record Messrs. T. Bancrji and Co. Thereafter between 18th Aug., 1982 and 16th Sept., 1982 from time to time the appellant sought to mention the matter before the appellate Court for obtaining extension of time to make the deposit but failed to obtain any extension although the matter appeared in the list from time to time marked as 'to be mentioned'. On or about 15th Sept., 1982 Messrs. T. Banerji and Co. received a telephone message from Madras that a precept or attachment order bearing No. EP 2272/82 had been issued by the City Civil Court at Madas and was served on the appellant at Madras which was made return-able on 27th Sept., 1982. On or about 28th Sept., 1982 this application was made by the appellant through its present advocate on record. Mr. S. S. Ganguly.
5. Mr. Anindya Mitra, learned Advocate for the appellant, submitted that this Court had wide powers to make the orders prayed for. The appellant was unable to make the deposit as directed by the order dated 13th July, 1982 due to the difficulties fully explained in the petition herein. The appellant has bona fide defence to the claim of the respondent No. 1 which is substantial. The appellant has also a counter-claim against the respondent No. 1. The trial Court was satisfied that the appellant had defence to the claim of the respondent No. 1 and that is why granted leave to defend though it was conditional. If the appellant succeeds in the appeal, of which it has very fair chance, the said order of the trial Court would be set aside and the decree which flowed from the said order would also stand set aside, which would, in fact, be a consequential order upon the order of the trial Court being set aside. Thus, this Court has not only power to grant an extension of time to make the deposit and to stay the operation of the order of the trial Court but also to stay the execution of the decree or grant an injunction restraining the respondent No. 1 from executing the decree. Mr. Mitra refferedOrder 21, Rule 26 of the Civil P. C. to show that this Court has jurisdiction to stay the execution of the decree. Mr. Mitra also relied on a Bench decision of this Court in Mitra Mukherjee and Co, v. Ajit Kumar Sarkar reported in AIR 1963 Cal 9. In this case a conditional order was made directing the defendant to furnish security and in default, a decree for the amount claimed to be passed in favour of the plaintiff. This order was made in an application under Chap. XIII-A of the Rules of the Original Side of this Court. The defendant defaulted in making the deposit and a decree was accordingly passed An objection was taken on behalf of the plaintiff respondent as the defendant appellants preferred an appeal only from the order directing furnishing of security and not from the decree which was drawn up later, the appeal should not be allowed as that would leave the decree untouched. This contention was repelled by the Court and it was observed that the de-crce in the case did not stand by itself but rested on the order for furnishing security and was expressly conditional on the defendant's failure to furnish security and if the appeal was allowed from the said order the decree which was based on it would automatically disappear and it was not necessary to file an appeal from the decree. The Court relied on a decision of the Madras High Court in Sundaram Chettiar v. Valli Animal, (ILR 58 Mad 116 : AIR 1935 Mad 43).
6. Mr. P. K. Roy the learned Advocate appearing for the respondent, contended that no grounds have been made out by the appellant for the orders prayed for. A decree having been now passed which has been transmitted to the City Civil Court, Madras for execution and the execution is pending there, this Court at this interlocutory stage should not pass an order extending the time for making the deposit which would in effect wipe out the default and nullify the decree resulting in virtually allowing the appeal at this stage. It was urged that decree having been passed the time to make the deposit can no more be extended. The explanation for inability to make the deposit is wholly untenable and untrue. The story that the Executive Director who is alleged to be looking after all financial matters of the appellant being absent, no decision with regard to making of deposit could be taken, is preposterous. There are also no particulars as to when the said Executive Director left India and when did he return. Jn para 27 of the present petition it is alleged that the said Executive Director was in charge andcontrol of the present litigation. This petition is signed by Biswanath Jhunjhunwalla and is verified by an affidavit affirmed by him. The previous petition asking for leave to prefer this appeal without the certified copy of the order appealed against and for stay of operation of the order was also signed on behalf of the appellant and verified by an affidavit of the same Biswanath Jhunjhun-wala. In para 22 of the said petition it was alleged that it was the Managing Director of the appellant who was to take the decision as to whether the present appeal would be preferred or not, who has now completely gone out of the picture and Shew Bhagwan Goenka is alleged to be all in all. It was submitted that the decision in Mitra Mukherjee and Co. (supra) cited on behalf of the appellant would have no application at this stage inasmuch as the Court made the observations relied on, in allowing the appeal which was being heard by the Court. It was also submitted that Order 21, Rule 26 of the Code is also not applicable.
7. Mr. Mitra submitted that the appellant is agreeable to deposit Rs. 75,000.00 as directed by the trial Court.
8. It is not necessary for us at this stage, in this application to consider whether the defence made out by the appellant to the claim of the respondent in the suit herein is bona fide or meritorious or not. We are only concerned as to whether the orders prayed for in this application or any of them should be made. The explanation for the inability of the appellant to make the deposit as initially directed by us is hardly acceptable. It is scarcely believable that absence of one person that is the Executive Director would not allow the appellant to make the deposit. Admittedly there is a Managing Director and there must be also other Directors who could very well take the decision, since default in making the deposit would foist a decree on the appellant. There are no particulars as to the 'certain huge financial commitments' regarding the appellant's business which did not permit the appellant to make the deposit. It is not understood what is the correct and actual reason for not making the deposit. Was It the huge financial commitments or absence of Executive Director from India If it was huge financial commitments then the absence or presence of the Executive Director did not matter. On the other hand, if it was the absence of the Executive Director then huge financial commitments or no commitments, the deposit could not be made, if the casemade by the appellant is to be believed. The comment of Mr. Roy that there are no particulars as to when the Executive Director left India and when did the come back is not without force. Order 21, Rule 26 of the Code does not in terms apply to the present case, apart from that it shows that in certain circumstances this Court may stay the execution of the decree. Under the said provision the Court to which the decree has been sent for execution shall, upon sufficient cause being shown stay the execution of the decree for a reasonable time to enable the judgment-debtor to apply to the Court which passed the decree or to the appellate Court having jurisdiction in respect of the decree or execution thereof, for stay of execution. That is not the case here. No application has been made by the appellant before the City Civil Court at Madras for stay of execution of the decree to enable the appellant to apply for stay in this Court. Therefore, the other conditions in the said rule do not apply. This is an independent application made by the appellant to this Court without recourse to the City Civil Court at Madras. We also accept the contention of Mr. Roy that the observations made in Mitra Mukherjee and Co's case (AIR 1963 Cal 9) (supra) would have no application at this stage. No doubt, no separate appeal need be preferred from the decree, inasmuch as, he decree rests on the order appealed from but an order extending the time to furnish the security would affect the decree which cannot be done at this stage. It is true that if the appellant succeeds in this appeal the decree would automatically go but that does not mean that the decree should now at this stage be nullified by extending the time to make the deposit to the prejudice of the respondent No. 1 or by recalling or modifying our order dated 13th July, 1982. No case has been made out by the appellant for stay of operation of the decree or for restraining the respondent No. 1 from enforcing the decree. No new grounds have also been made out apart from those which existed at the time when the order appealed from was made by the trial Court or when the order dated 13th July, 1982 was made by us.
9. For all the above reasons this application cannot succeed. Accordingly this application is dismissed with costs.
Ramendra Mohan Datta, J.
10. I agree.