STATE OF ANDHRA PRADESH Vs. M HASAN KHAN MAHARAJ
HIGH COURT OF ANDHRA PRADESH
STATE OF ANDHRA PRADESH
MAHMUD HASAN KHAN MAHARAJ OF MAHMOODABAD
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Raghuvir, J. -
(1.) This court in CMP No. 4210/1982 on April 23, 1982 accorded
interim stay of execution of a money decree, (the subject in appeal) on
furnishing security by the (appellants) petitioner for the decreed amount
by bank guarantee or other security, to the satisfaction of the lower Court
The parties represent the security, as directed, was tendered by the petit
ioner. The security was accepted by the lower court. This application
has now come up for making the interim order absolute.
(2.) In this petition, the learned Counsel for the respondent (the
decree-holder) referrcd to sub-clause (3) of Rule 1 and sub-clause (5) of
Rule 5 of Order 41 of the Cede of Civil procedure and argued the "stay"
Application la not maintainable. In the range of inside railed, the debate
covered; (1) relating to the maintainablity of the appeal, CCCA No.
84/1982; (2) and maintainability of of the application, CMP No. 4210/1982
in CCCA No. 84/1982. The learned counsel for the respondent as to former
argued, the decision of the Delhi High Court in Union Bank of India
vs. Jagan Nath Radehy Shyam & Company was wrongly decided; we
under HOCK] that argument to content the appeal is not maintainable.
The learned Couniel, however, in the course of the debate explained, it
if not hit contention; the appeal is ma:utainable.
(3.) The learned counsel, however, pressed for acceptance the latter
contention and argued the "stay" application is not maintainable. The
contention was elaborated to held where appeal pertains to a money decree,
under sub-clause (3) of Rule 1 and sub-clause (5) of Rule 5 of Order
41, having regard to the intendment of the Parliament and on interpretation
of the above two clauses, before an application is made seeking to
stay of execution of money decree, perforce. Under the above two provisions
so it is asserted, the decretal amount either be deposited or security
must be tendered, before a stay application is heard by this Court :
Unless, one of the two things are complied, the stay application it is argued
is not maintainable. In this regard, the decision, in J Lakshmikantham
vs. U. Rajamma was cited and the decision in that case, it it argued, is
wrongly decided. The contention is further elaborated that the Parliament
intended, the dedosit of money decreed or security is a condition
precedent when a judgment-debtor seeks stay of execution; In the words
of the learned counsel "It Is a requirement in law and when one of the
two eonditioos is not complied, It results in non-maintainability of the
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