IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 736 of 2007()
1. JOSE, AGED 44, S/O. PALAKKAL ABRAHAM,
... Petitioner
Vs
1. SAJEESH KUMAR, AGED 43,
... Respondent
For Petitioner :SRI.THIYYANNOOR RAMAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :08/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C)NO.736 OF 2007
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DATED THIS THE 8th DAY OF JANUARY, 2007
JUDGMENT
Petitioner is the appellant in A.S.78/06 on the file of first
Additional District Court, Thrissur. Respondent is the plaintiff. The
decree challenged in A.S.78/06 provides for realisation of
Rs.1,88,811/- with interest and cost. In that appeal, petitioner filed
I.A.676/06, an application under Order XLI Rule 5 (2) of Code of Civil
Procedure to stay execution of the decree. Learned District Judge
directed petitioner to deposit Rs.20,000/-. Within the period, petitioner
did not deposit the amount and therefore it was dismissed under
Ext.P5 order. Petitioner filed I.A.885/06, an application to review the
order contending that property belonging to petitioner worth
Rs.15,00,000/- was attached in the suit and in such circumstances, he
may not be directed to deposit the money and the order be reviewed.
It was dismissed under Ext.P6 application. This petition is filed under
Article 227 of Constitution of India challenging Exts.P5 and P6 orders.
2. Learned Counsel appearing for petitioner was heard.
3. When a decree for realisation of money was passed, as
provided under Order XLI Rule 5(3), no order for stay of execution
shall be made unless the Court passing the order is satisfied that
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substantial loss may result to the party applying for stay of
execution, unless the order is made and that the application has
been made without reasonable delay and that security has been
given by the applicant for the due performance of the decree or
order as may ultimately be binding upon him. Sub Rule 5 of Rule 5
mandates that where appellant fails to make the deposit or furnish
the security specified in Sub rule (3) of Rule 5, appellate Court shall
not make an order staying execution of the decree.
4. As the decree sought to be stayed is a money decree, to
get an order of stay execution of that decree, petitioner is bound to
deposit the amount covered by the decree or furnish sufficient
security for the decree amount. Though petitioner was asked to
deposit Rs.20,000/-, he did not deposit the amount. In such
circumstances, dismissal of the application cannot be said to be
illegal or irregular. If the case of petitioner is that there was an
order of attachment and the property attached is sufficient to satisfy
the decree, then petitioner is at liberty to file an application before
learned Sub Judge, offering the attached property as security and
seek an order to stay the execution. If that property is a sufficient
security, appellate Court may order stay of execution of the decree.
Writ petition disposed accordingly.
M.SASIDHARAN NAMBIAR,JUDGE
Acd
W.P.(c)736/07 3