TMI Blog2005 (4) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... termination/breach of contract by the appellant and seeking inter alia a decree for recovery of damages. The suit ended in a money decree being passed in favour of the respondent and against the appellant. The appellant preferred a First Appeal which is pending in the High Court of Gujarat. Therein, the appellant moved an application under Order XLI Rule 5 of the Code of Civil Procedure seeking stay on the execution of the decree. On 19.9.2003, the High Court admitted the appeal for hearing both the parties on merits and granted a stay subject to the condition that the appellant shall deposit in the court an amount of ₹ 8,78,925/- with 8 per cent interest on or before 4.11.2003. The appellant moved an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that regard has been made on affidavit in this Court. Order XLI 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 fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 decretal 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. While making these observations, we should not be understood as having made an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
