The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Jul-2024 18:43:41 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1115 OF 2023 Subhalaxmi Mishra …. Petitioner Mr. Bibekananda Bhuyan, Advocate -versus- M/s. Eris Health Research Pvt. Ltd., Bhubaneswar and others …. Opp. Parties
Legal Reasoning
Mr. Amit Prasad Bose, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 22.07.2024 4. 1. This matter is taken up through hybrid mode. 2. Order dated 19th July, 2023 (Annexure-4) passed in R.F.A. No.301 of 2022 is under challenge in this CMP, whereby learned 1st Additional District Judge, Bhubaneswar stayed further proceeding of Execution Case No.246 of 2023 subject to deposit of 50% of decreetal amount before learned 1st Additional Senior Civil Judge, Bhubaneswar within a period of one month from the date of the said order and further directed to the Appellants-Opposite Parties to go on paying the current rent in respect of the suit property. 3. Mr. Bhuyan, learned counsel for the Petitioner submits that the suit has been filed for eviction of the Appellants- Opposite Parties and realization of arrear rent. Admittedly, the Defendants are tenants under the Plaintiff-Petitioner. Since they failed to pay the rent, a suit for eviction was filed along with a prayer for realization of the arrear rent as well as for other relief. The suit has been decreed in part in favour of the Plaintiff- Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Jul-2024 18:43:41 Petitioner, which is assailed by the Opposite parties in R.F.A. No.301 of 2022 and at present, it is pending in the Court of learned 1st Additional District Judge, Bhubaneswar. 4. Mr. Bhuyan, learned counsel for the Petitioner submits that along with the appeal memo, the Petitioner filed an application for stay of Execution Case No.246 of 2023 filed by the Petitioner for execution of the decree. Learned trial Court without taking note of the provision under Order XLI Rule 3 read with Order XLI Rule 5(3) CPC, allowed the application by directing the Opposite Parties to deposit 50% of the decreetal amount before learned trial Court and to go on paying the current rent to the Plaintiff-Petitioner. It is his submission that the requirement under Order XLI Rule 5(3) CPC is mandatory in nature. Since the decree under challenge is for realization of money, the Defendants-Opposite Parties were required to secure the same. 5. Law is well settled that learned appellate Court may direct to deposit the entire decreetal amount in cash or may at its discretion, direct the Appellants to deposit part of the decreetal amount in cash and furnish security for the rest part of the decreetal amount for satisfaction of the decree. Although, learned appellate Court directed the Opposite Parties to deposit 50% of the decreetal amount in the shape of cash, but failed to direct them to furnish security for the rest part of the decreetal amount. Thus, the impugned order under Annexure-4 is not sustainable and is liable to be set aside. 6. In support of his case, Mr. Bhuyan, learned counsel for the Petitioner relied upon the case of Iftikhar Iman Mallick @ Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Jul-2024 18:43:41 Iftikhar Imam –v- Mst. Mehroom Nisha, reported in 2014 (II) CLR 750 and Ananta Charan Pothal –v- Smt. Guramani Pothal and others, reported in 2013 (II) OLR 919. He also placed reliance upon the case of Hadibandhu Senapati and another –v- Smt. Champamani Behera and others, reported in (1995) 2 OLR 446 and submits that the provision under Order XLI Rule 5(3) CPC is mandatory in nature and the Court has no discretion to dispense with furnishing security as has been done in the instant case. He also submits that in a case of M/s. P.K. Enterprises and another –v- Suresh Chandra Panda and others (CMP No.779 of 2022) disposed of on 19th October, 2022, this Court has reiterated the ratio decided in the aforesaid case laws. He accordingly, prays for setting aside the impugned order under Annexure-4 and to direct the Appellants-Opposite Parties to furnish adequate security for satisfaction of the decree. 7. Mr. Bose, learned counsel for the Appellants-Opposite Parties vehemently objects to the above. It is his submission that the Opposite Parties have already complied with the impugned order by depositing 50% of the decreetal amount and are going on paying monthly rent to the Petitioner regularly. The decreetal amount is more than Rs.42 lakh. Thus, considering the same, learned appellate Court directed them to deposit 50% of the decreetal amount. He, however, submits that there is no dispute to the position of law as submitted by Mr. Bhuyan, learned counsel for the Petitioner. He, therefore, submits that since the impugned order under Annexure-4 has already been complied with, it is no more available to be challenged. Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Jul-2024 18:43:41 8. Taking note of the submissions made by learned counsel for the parties and on perusal of the record, more particularly, Order XLI Rule 1(3) CPC, it is clear that where the appeal is against a decree for payment of money, the Appellant shall, within such time as the appellate Court may allow deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Order XLI Rule 5 CPC deals with power of the Appellate Court to grant stay. Order XLI Rule 5(3) CPC reads as under: “5. Stay by Appellate Court.- XXX XXX XXX XXX 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; that (b) without unreasonable delay; and the application has been made the that security has been given by (c) applicant for the due performance of such decree or order as may ultimately be binding upon him.” 9. It is observed in Hadibandhu Senapati and another (supra) that, “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 the 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.” Thus, it is manifest that in a money decree as in the present case, the Court has no discretion to dispense with furnishing of security for performance of any part of the decree. Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Jul-2024 18:43:41 Admittedly, learned Appellate Court directed the Opposite Parties to deposit 50% of the decreetal amount. But, no order to furnish security for performance of rest part of the decree, has been directed. 10. In view of the above, the impugned order under Annexure-4 is not sustainable and is accordingly set aside. The matter is remitted to learned 1st Additional District Judge, Bhubaneswar to consider the matter afresh keeping in mind the discussion and the case laws referred to above giving opportunity of hearing to the parties concerned. 11. The CMP is allowed to the aforesaid extent. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5