B.P. AGARWAL AND ANR. versus ~ DHANALAKSHMI BANK LTD: AND ORS.

Citation: [2008] 2 S.C.R. 28 · Decided: 25-01-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed
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Judgment (excerpt)

A 
B 
[2008) 2 S.C.R. 28 
B.P. AGARWAL AND ANR. 
v. 
~ DHANALAKSHMI BANK LTD: AND ORS. 
(Civil Appeal No. 922 of 2002) 
JANUARY 25, 2008 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
·.Code of Civil Procedure, 1908: 
O.XLI, r. 1 (3) - Appeal against money decree - No 
c application for stay filed - High Court directed the appellant 
to:deposit money in Trial Court within specified time - Held: In 
absence of any application for stay, High Court could not have 
·passed the order - Direction for deposit accordingly vacated. 
High Court, in exercise of jurisdiction under Order 
D XLI Rule 1 (3) of CPC, directed the appellant to deposit a 
sum of Rs.5,00,000/- in Trial Court within a particular time. 
E 
The contention of the Appellant is that the High Court 
could not have referred to Order XLI Rule 1 (3) in the 
absence of any application for stay. 
Allowing the appeal, the Court 
HELD: 1.1: Non-compliance with the direction given 
regarding deposit under sub-rule (3) of Rule 1 of Order 
XLI would result in the Court refusing to stay the execution 
F of the decree. The application for stay of the execution of 
the decree could be dismissed for such non-compliance 
but the Court could not give a direction for the dismissal 
of the appeal itself for such non-compliance. [Para 4] 
G 
H 
[30-E, F] 
1.2. In case the appellant prays for stay of the 
execution of the decree or for any order by way of an 
interim relief during the pendency of the appeal; it is open 
for the Court to impose any condition as it may think fit 
and proper in the facts and circumstances of the case. 
28 
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B.P. AGARWAL AND ANR. v. DHANALAKSHMI BANK 
LTD. AND ORS. [PASAYAT, J.] 
29 
Otherwise imposing a condition of deposit of money A 
subject to which an appeal may be admitted for hearing 
on merits, is not legally justified and such order cannot 
be sustained. [Para 5] [31-E, F] 
Kayamuddin Shamsuddin Khan v. State Bank of India 
(1998) 8 SCC 676 and Devi Theatre v. Vishwanath Raju B 
(2004) 7 sec 337 - referred to. 
2. In the instant case there is no direction that in case 
of non-payment, the appeal is to be dismissed. In the 
absence of any application for stay the High Court could C 
not have passed the order impugned. The direction for 
deposit as given accordingly stands vacated. [Para 6] 
[31-F, G] 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 922 
of 2002. 
From the final Judgment and Order dated 7.6.2001 of the 
High Court of Kerala at Ernakulam in A.S. No. 48 of 2001 
B.V. Deepak (for Mis. T.T.K. Deepak & Co.) for the 
Appellants. 
K.V. Mohan (for K.R. Nambiar) for the Respondents. 
The Judgment of the Court was delivered by 
D 
E 
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to 
the order passed by the Division Bench of the Kera la High Court. 
By the impugned order the High Court in exercise of jurisdiction 
F 
under order XLI Rule 1 (3) of the Code of Civil Procedure, 1908 
(in short the 'CPC') directed the appellant to deposit a sum of 
Rs.5,00,000/- in trial court within a particular time. Appellants 
question the correctness of the order on the ground that the High 
Court could not have referred to Order XLI Rule 1 (3~ in the G 
absence of any application for stay. 
~·Learned counsel forthe respondents on the other hand 
supported the order of the High Court. 
3. Undisputedly, ·in the present case there was no H 
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SUPREME COURT REPORTS 
[2008] 2 S.C.R. 
\ -
4-
A application for stay filed. A few decisions of this Court being 
relevant need to be noted. 
4. In Kayamuddin Shamsuddin Khan v. State Bank of 
India [1998 (8) SCC 676] the dispute related to Order XLI Rule 
B 
1 (3) it was held that if the amount is not deposited, the appeal 
could be directed to be dismissed. Obviously reference was to 
Order XLlll Rule 5(5). lil paragraphs·6 and 8 this Court observed 
as follows: 
..., 
''6. The learned counsel for the respondent has invited our 
c 
attention to sub-rule (3) of Rule 1 of Order XU in the Code 
of Civil Procedure, as amended in the State of 
Maharashtra, which reads as under: 
"(3) Where the appeal is against a decree for 
payment of money, the appellant shall, within such 
D 
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: 
Provided that the Court may dispense with the deposit 
)"· 
or security where it deems fit to do so for sufficient 
' 
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cause." 
• 8. This would mean that nori-compliance wi
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