Patna High Court - Orders
Daya Nidhi Singh vs Mantosh Kumar Singh & Ors on 11 October, 2018
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.39 of 2017
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Daya Nidhi Singh
.... .... Appellant/s
Versus
Mantosh Kumar Singh & Ors
.... .... Respondent/s
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Appearance :
For the Appellant : Mr. Dhrub Narayan, Sr. Advocate
Mr. Jitendra Prasad Singh, Advocate
Mr. Prabhat Kumar Dipak, Advocate
For Respondent No.1 : Mr. Awadhesh Kumar, Advocate
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CORAM: HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL ORDER
11 11-10-2018Re: I.A. No.1604 of 2018 Heard Mr. Dhrub Narayan, learned Senior Counsel appearing for the appellant in I.A. No.1604 of 2018 and the learned counsel for respondent no.1.
The present application (I.A. No.1604 of 2018) under the provisions of Order XLI Rule 5 of the Code of Civil Procedure has been preferred by the appellant seeking to stay the money decree of Rs.51,08,266.79 with future interest, cost of litigation as well as interest @ 12% per annum.
Learned counsel for the appellant submits that the entire suit was misconceived and the Court has arrived at an erroneous finding, which in itself is good ground for stay of the decree. He thus submits that Execution Case No.28 of 2017 pending in the court of the learned Sub-Judge III, Sasaram be Patna High Court FA No.39 o f 2017 (11) dt.11-10-2018 2/3 kept in abeyance, till further orders.
Learned counsel for respondent no.1 has, however, seriously opposed the application and has submitted that unless and until security is offered by the appellant, the stay of the money decree would occasion substantial loss to the respondents and would amount to virtually defeating the purpose of the execution case. It is further submitted that in case the appellant furnishes sufficient security, an order of stay would be in defeasive of the cause of justice. He has pointed out to Sub-rule (5) of Rule 5 of Order XLI of the C.P.C., which is quoted hereunder:
"(5) Notwithstanding 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 rule 1, the Court shall not make an order staying the execution of the decree."
In response to the aforementioned submissions advanced by the learned counsel for respondent no.1, learned Senior Counsel for the appellant submits that he shall file a supplementary affidavit bringing on record the securities, which are proposed to be offered by the appellant in lieu of stay of the proceeding.
Patna High Court FA No.39 o f 2017 (11) dt.11-10-2018 3/3 List this case on the 20th of November, 2018 under the same heading.
(Anjana Mishra, J) PNM U