Madhya Pradesh High Court
Hanuman Prasad Gupta vs Ram Bahor Mishra on 3 August, 2018
1 FA-1009-2015
The High Court Of Madhya Pradesh
FA-1009-2015
(HANUMAN PRASAD GUPTA Vs RAM BAHOR MISHRA)
3
Jabalpur, Dated : 03-08-2018
Shri Sushant Ranjan, counsel for the appellant.
Shri Ashok Lalwani, counsel for the respondent.
Parties are heard on IA No.14719/15 filed under section 5 of the Limitation Act. The appellant prays to condone the delay of 44 days on the ground that (i) After passing the decree, the parties tried to settle the matter out of the court with a mediator Shri K.P.Katare but the matter could not be settled. This mediation proceeding consumed some time. Thereafter, the appellant was advised complete bed rest from 15.08.2015 to 27.10.2015 and he was under treatment of C.M.O, Rewa.
Shri Sushant Ranjan, learned counsel for the appellant submits that the appellant has shown sufficient cause for belatedly filing the present appeal and hence delay may be condoned.
Shri Lalwani, learned counsel for the respondent opposed the said prayer and contended that there is no proof of any mediation proceedings being undertaken nor any medical documents are filed in support of the said application. Thus, the application may be rejected.
I have heard the parties on this aspect.
The instant application was filed on 14.11.2015. Till date the respondent has not chosen to file the reply and rebut the factual allegations mentioned in the said application. The application is supported by the affidavit of the appellant. In absence of any rebuttal to the factual foundation/ averments of said application, I am not inclined to reject this application in which a little delay of 44 days is sought to be condoned. I am satisfied that sufficient cause for delay has been shown and accordingly, the IA is allowed. The delay is condoned.
The parties are also heard on IA No.14718/15. Shri Sushant Ranjan, learned counsel for the appellant submits that the court below in the execution proceedings initiated by the respondent has issued attachment warrant of the property of the appellant. If singular property of the appellant in which he is residing is attached, he will face serious consequences and irreparable loss. By placing reliance on (2005) 4 SCC-1 (Sihore Nagar Palika Bureau Vs. Bhabhlubhai Virabhai & Co.), learned counsel for the appellant contends that in the peculiar facts Digitally signed by MANOJ KUMAR LALWANI Date: 03/08/2018 17:59:21 2 FA-1009-2015 and circumstances of this case, the appellant may be protected.
Per contra, Shri Lalwani opposed the said prayer by taking this court to the language employed in sub rule 5 of Order 41 CPC. He also placed reliance on (1982) 3 SCC-199 (M/s Mehta Teja Singh and C ompany Vs. Grindlays Bank Limited). It is urged that no injunction can be granted against a money decree.
No other point is pressed by learned counsel for the parties. I have heard the parties on this aspect.
In the case of Grindlays Bank (supra) , no principle of law is laid down. In a given fact situation, the Apex Court has passed the said order whereas in the case of Sihore Nagar Palika Bureau (supra), the Apex Court held as under :-
Order 41 Rule 1(3) of the CPC provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Under Order XLI Rule 5(5) a deposit or security, as abovesaid, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate cases.
In the facts and circumstances of the present case and having taken into consideration the respective submissions made by the learned counsel for the parties in very many details, we are satisfied to hold that the High Court ought to have permitted furnishing of security instead of insisting on Digitally signed by MANOJ KUMAR LALWANI Date: 03/08/2018 17:59:21
3 FA-1009-2015 deposit in cash of the amount as directed by the High Court. It is not the case of the respondent that in the event of the appeal being dismissed the decreetal amount may not be recovered from the appellant. On the other hand, the appellant has made out a prima facie strong case for the hearing of the appeal on its merits and further a case that public interest would be better served by the amount being retained by the appellant during the pendency of the appeal.
A plain reading of this judgment shows that certain principles are laid down after perusal of relevant provisions, namely, Order 41 rule- 1(3) and 5(5) of CPC. The Apex Court, in no uncertain terms made it clear that discretion is vested with the appellate court to either direct deposit of an amount questioned in appeal or to permit such security in respect thereof as deem fit by the appellate court. There is no complete bar for grant of stay against a money decree.
In this view of the matter and in the peculiar facts and circumstances of this case, I deem it proper to direct the appellant to deposit bank guarantee of Rs.,20,00,000/- (Rs. Twenty lacs) before the court below within two weeks from today. If said bank guarantee is deposited within aforesaid period, the impugned judgment dated 16.05.2015 and consequent action thereupon in the execution proceedings, shall remain stayed.
Accordingly, IA is disposed of.
The appeal is also formally admitted for final hearing. List in due course.
(SUJOY PAUL) JUDGE MKL Digitally signed by MANOJ KUMAR LALWANI Date: 03/08/2018 17:59:21