Orissa High Court
Hadibandhu Senapati And Anr. vs Smt. Champamani Behera And Ors. on 24 August, 1995
Equivalent citations: AIR 1996 ORISSA 84, (1995) 2 ORISSA LR 446
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT Pasayat, J.
1. Direction of learned District Judge, Balasore requiring the petitioners to furnish cash security of Rs. 5,500/- by way of deposit in his Court as a condition precedent for continuance of stay is the subject-matter of challenge.
2. Fact situation is almost undisputed. Title Suit No. 150 of 1987 was filed by opposite party Nos. 1 to 5 as plaintiffs against the petitioners, who were defendants 2 and 4, claiming their right, title and interest over the suit property. Another suit bearing Title Suit No. 222 of 1980 was filed by one Upendra Senapati against the petitioners and others, and those two suits were taken up together by the learned trial Judge. Ultimately T. S. No. 150 of 1987 was decreed against the petitioners and defendant No. 3 on contest and ex parte against other defendants. The right, title and interest of the plaintiffs in the suit property were declared and defendant No. 2 was directed to give delivery of possession of the land to plaintiffs. It was directed that in case of failure to deliver possession, the plaintiffs were at liberty to take possession of the property through Court, it was further held that the plaintiffs were entitled to get arrears of rent as claimed in 'Kha' schedule at the rate of Rs. 80/- per month from defendant No. 2 during pendency of the suit till delivery of possession of the land. Execution Case No. 31 of 1994 was levied against the petitioners to take delivery of possession and for realisation of arrears of rent, which was stayed ex parte by the learned District Judge by order dated 20-2-1995. The opposite parties sought for vacation of the order on the ground that security as required under Order 41, Rule 5 of the Code of Civil Procedure, 1908 (in short, the 'CPC') ought to be demanded from the petitioners. On the other hand petitioners contended that there was no provision in the CPC for seeking vacation of the interim stay, and since no money decree had been passed there was no requirement of furnishing security. The plea did not find acceptance by the learned District Judge, who directed furnishing of security as stated above.
3. In support of the revision application Mr. P. Kar, learned counsel submitted that the scope and ambit of Order 41, Rule 5 of the CPC has been misconstrued by the learned District Judge. According to him, there was no requirement for furnishing security unless the decree related to a money decree, and in any event cash security should not have been directed.
Mr. S. Misra (2), learned counsel for opposite parties on the other hand supported the order.
4. Rule 5 of Order 41, CPC relates to stay of proceedings and of execution. By the Amendment Act 104 of 1976 an Explanation has been added to Sub-rule (1) to provide that an order for stay of execution made by the appellate Court operates only from the time it is communicated to the executing Court. After an appeal has been filed the appellate Court may order the stay of proceedings under the decree or of execution of such decree. Obviously the rule will apply only when the decree under appeal is capable of execution. The provisions of Sub-rule (3) of Rule 5 are mandatory, and therefore, conditions prescribed in Clauses (a), (b) and (c) thereof must be fulfilled before granting a stay. The power to grant stay of execution on sufficient cause being shown is controlled by Sub-rule (3) and each of the three conditions specified therein must be satisfied before stay is granted. Execution should not be stayed unless the Court is satisfied that substantial loss may otherwise result to the judgment-debtor, and the application is made without unusual delay. The amount deposited as security under Rule 5 does not ipso facto without an order of Court, become the property of the decree-holder. Under Sub-rule (3) of Rule 5 it is clear 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 about the pre-conditions stipulated therein. One of the conditions is that the security has been given by the appellant for the due performance of such decree or order as may ultimately he binding upon him. There is no force in the submission of Mr. Kar that the requirement of furnishing security is applicable to money decrees and not to other decrees. There is nothing in Sub-rule (3) to support such a plea. The language of Sub-rule (3) of Rule 5 is emphatic and imperative mandating that no order of stay of execution shall be made unless the Court is satisfied that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him, amongst other conditions. The provision is couched in mandatory language, and if the Court finds that no security has been furnished by the applicant no order of stay of execution can be made under Sub-rule (1) or Sub-rule (2).
5. Further case of the petitioners is that there is no requirement for cash security. According to Mr. Misra, the amount being relatable to arrears of rent, cash security has been rightly directed to be furnished. There can be no doubt that the Court has wide discretion in the matter of fixing the nature and mode of security. There is no statutory definition of security in CPC. Speaking generally, security is anything that makes the money more assured in its payment or more readily recoverable. It is an encumbrance. The purpose of a security is to ensure, or facilitate the fulfilment or enjoyment of some other right vested in its owner. Money paid into Court to abide the event of an action is a security to the other litigant, who, if succeeds, becomes thereby a secured creditor. In an appropriate case, the Court can certainly direct deposit of cash security, and in other cases it may direct furnishing of property security. It all depends on nature of dispute.
6. Considering the nature of case, I feel interest of justice would he best served, if the petitioners are required to deposit a sum of Rs. 2,000/-, and furnish property security of Rs. 3,500/- to the satisfaction of the learned District Judge, Balasare. The deposit is to be made and security is to be furnished by 10th of October, 1995. The appellate Court would do well to dispose of the appeal by the end of November, 1995.
7. The civil revision is allowed to the extent indicated above.