Andhra HC (Pre-Telangana)
S. Lakshmireddy vs Gutha Sanjeevamma on 13 June, 2005
Equivalent citations: 2005(6)ALD226, 2005(4)ALT242, IV(2005)BC278
ORDER P.S. Narayana, J.
1. Heard Sri Prakash Reddy, the counsel representing the revision petitioner.
2. The matter is coming up for admission to-day. The Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure as against the order dated 27-04-2005 made in I.A. No. 2069 of 2004 in A.S. No. 114 of 2004 on the file of the I Additional District Judge, Cuddapah. The appellant in A.S. No. 114 of 2004 moved an application I.A. No. 2069 of 2004 under Order 41 Rule 5 of C.P.C. praying for stay of execution of proceedings in E.P. No. 177 of 2004 in O.S. No. 75 of 1996 on the file of Senior Civil Judge, Cuddapah. The learned Judge taking the facts and circumstances into consideration ultimately directed the petitioner-appellant to deposit the decretal amount in the E.P. pending on the file of Senior Civil Judge, Cuddapah, as claimed in the E.P. on or before 7-6-2005 and it was also further directed that the respondent-plaintiff shall not withdraw the amount till the appeal is decided. Aggrieved by the same, the present Civil Revision Petition is preferred.
3. Sri Prakash Reddy, the learned counsel representing the revision petitioner would submit that in view of the fact that half of the amount had already been deposited, in the present application, the learned Judge ordering to deposit the total decretal amount covered by the E.P. cannot be said to be an order made in proper exercise of the discretion and hence the impugned order cannot be sustained.
4. Heard the counsel.
5. Order 41 Rule 5 of the Code of Civil Procedure reads as hereunder:
"5. Stay by Appellate Court:
(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
[Explanation: An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the Appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.] (2) Stay by Court which passed the decree:- Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under Sub-rule (1) or Sub-rule (2) unless the Court making it is satisfied--
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of decree or order as may ultimately be binding upon him.
(4) Subject to the provision of Sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.
(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."
6. The suit O.S. No. 75 of 1996 on the file of the Senior Civil Judge, Cuddapah, was decreed ex parte in 1997 and E.P. No. 177 of 2004 was filed for execution of the said decree. It is a money decree. The revision petitioner-appellant-defendant preferred revision as against the execution proceedings and the ex parte proceedings were set aside on the condition of the revision petitioner herein depositing half of the ex parte decretal amount and the said amount was deposited and respondent-plaintiff had withdrawn the same. Subsequent thereto, the suit was decreed on merits. Respondent-plaintiff-decreeholder had put the decree in execution by filing E.P. No. 177 of 2004 for sale of immovable property. Hence, in the appeal A.S. No. 114 of 2004 the present application I.A. No. 2069 of 2004 was filed under Order41 Rule 5 of the Code of Civil Procedure. The suit amount was borrowed on 10-8-1993. Apart from this aspect of the matter, the learned Judge observed that though the Court was ready to take up the appeal itself for final hearing and to dispose of the matter, the revision petitioner herein was not inclined to proceed with the disposal of the appeal as such. In the facts and circumstances, it was directed that the decretal amount covered by E.P. be deposited with a further direction to respondent-plaintiff not to withdraw the same till the appeal is decided. The only contention advanced by the learned counsel representing the revision petitioner is that the discretion was not exercised properly inasmuch as half of the decretal amount had already been deposited and respondent-plaintiff had withdrawn the same.
7. In Varadayaa v. Chinnappa Reddi, AIR 1956 Andhra 64 the Division Bench of Andhra High Court held that it is an established rule of practice that ordinarily stay of money decree will not be given unless there are special circumstances.
8. Apart from this aspect of the matter, the learned Judge had recorded reasons and had exercised the discretion in proper perspective. It is also not in serious controversy that the disposal of the interlocutory application would not amount to disposal of any proceeding in finality and in that view of the same, in the light of the amended provisions of Section 115 of the Code of Civil Procedure, this Civil Revision Petition is not maintainable. On both the grounds the revision petition is bound to fail.
9. Accordingly, the Civil Revision Petition is hereby dismissed at the stage of admission. No costs.
10. At this stage, a request is made that the time had already expired for making the deposit as directed by the learned Judge. Therefore, the time for making the deposit is hereby extended till the end of June 2005, in default, the order made by the learned Judge would operate.