B.P. Agarwal v. Dhanalakshmi Bank Ltd. , (SC) BS137861
SUPREME COURT OF INDIA

Before:- Dr. Arijit Pasayat and P. Sathasivam, JJ.

Civil Appeal No. 922 of 2002. D/d. 25.1.2008.

B.P. Agarwal & Anr. - Appellants

Versus

Dhanalakshmi Bank Ltd. & Ors. - Respondents

For the Appellant :- B.V. Deepak, Advocate.

For the Respondents :- K.V. Mohan, Advocate.

NUTSHELL

Appeal against decree for payment of money - Appellate Court cannot direct the appellant to deposit part of amount unless a request for stay of decree is made out.

Civil Procedure Code, Section 96 - Civil Procedure Code, Order 41, Rule 1(3) - Appeal against a decree for payment of money - No application for stay made - High Court directed the appellant to deposit Rs. 5 lakhs - Order of High Court set aside - Held :-

[Para 6]

Cases Referred :-

Kayamuddin Shamsuddin Khan v. State Bank of India [1998(8) SCC 676].

Devi Theatre v. Vishwanath Raju [2004(7) SCC 337].

JUDGMENT

Dr. Arijit Pasayat, J. - Challenge in this appeal is to the order passed by the Division Bench of the Kerala High Court. By the impugned order the High Court in exercise of jurisdiction under Order 41 Rule 1(3) of the Civil Procedure Code, 1908 (in short the 'CPC') directed the appellant to deposit a sum of Rs. 5,00,000/- in trial court within a particular time. Appellants question the correctness of the order on the ground that the High Court could not have referred to Order 41 Rule 1(3) in the absence of any application for stay.

2. Learned counsel for the respondents on the other hand supported the order of the High Court.

3. Undisputedly, in the present case there was no application for stay filed. A few decisions of this Court being relevant need to be noted.

4. In Kayamuddin Shamsuddin Khan v. State Bank of India [1998(8) SCC 676] the dispute related to Order 41 Rule 1(3) it was held that if the amount is not deposited, the appeal could be directed to be dismissed. Obviously reference was to Order 43 Rule 5(5). In paragraphs 6 and 8 this Court observed as follows :

5. Similarly, in Devi Theatre v. Vishwanath Raju [2004(7) SCC 337] it was inter alia observed as follows :

6. In the instant case there is no direction that in case of non-payment, the appeal is to be dismissed. In the absence of any application for stay the High Court could not have passed the order impugned. The direction for deposit as given accordingly stands vacated.

7. The appeal is allowed but without any order as to costs.

Appeal allowed.