IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26304 of 2008(F)
1. MYLADY WAREHOUSING PRIVATE LTD.,REG. OFF
... Petitioner
Vs
1. SMALL INDUSTRIES DEVELOPMENT BANK OF
... Respondent
2. SMALL INDUSTRIES DEVELOPMENT BANK OF
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/09/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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W.P.(C) NO. 26304 OF 2008
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Dated this the 1st day of September, 2008
JUDGMENT
Petitioner is the plaintiff and respondents the defendants,
who are respectively the respondent and appellants in A.S.246
of 2007 on the file of Sub Court, Ernakulam. Challenging the
decree for realisation of money in favour of petitioner,
respondents filed the appeal. In the appeal, I.A.2007 of 2008
was filed for stay of execution of the decree till disposal of the
appeal, under Rule 5 of Order XLI of Code of Civil Procedure.
Under Ext.P5 order, learned District Judge granted an order of
stay till disposal of the appeal. This petition is filed under
Article 227 of Constitution of India challenging Ext.P5 order.
2. The arguments of the learned counsel appearing for
petitioner and learned senior counsel appearing for respondents
were heard;
3. Learned counsel appearing for the petitioner argued
that under clause (c) sub rule 3 of Rule 5 of Order XLI of Code of
Civil Procedure, Appellate Court can grant an order of stay only
WP(C)26304/08 2
if security has been furnished by the appellant for the due
performance of such decree as may ultimately be binding upon
him and as under Ext.P5 order no security was directed to be
furnished, the order is illegal. The learned counsel pointed out
that exemption from furnishing security as provided under Rule
5 was provided only to the Government under Rule 8A of Order
XXVII of Code of Civil Procedure and therefore the order was
passed in improper exercise of jurisdiction vested and the order
is to be quashed.
4. Learned senior counsel pointed out that respondents,
the appellants in the first appeal, are financial institutions of the
Central Government and the purpose of providing security is to
enable respondents in the appeal to get the fruits of the decree
and when the respondents are Central Government financial
institutions, there is no necessity to pass an order for furnishing
security. Learned senior counsel also argued that Ext.P1 order
is not amenable for correction under Article 227 of Constitution
of India, relying on a decision of Apex Court in Essen Deinki v.
Rajiv Kumar ((2002) 8 SCC 400).
5. It cannot be said that a money decree granted by trial
Court could be stayed by Appellate Court in an application filed
WP(C)26304/08 3
under Rule 5 of Order XLI of Code of Civil Procedure without
satisfying the conditions provided under sub rule 3. But when
the appellants are financial institutions of the Central
Government, I do not find that it is necessary to interfere with
Ext.P5 order. The purpose of furnishing security is to enable the
plaintiff, who successively obtained the decree from trial Court,
can enjoy the fruits of decree if the appeal is dismissed. As that
security is available in this case, respondents being the financial
institutions of the Central Government, I do not find it necessary
to direct furnishing security. In any event the order is not to be
set aside in exercise of the supervisory jurisdiction under Article
227 of Constitution of India. In such circumstances the petition
is dismissed. Learned District Judge is directed to dispose the
appeal expeditiously.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-