STATE OF ANDHRA PRADESH Vs. M HASAN KHAN MAHARAJ
LAWS(APH)-1982-10-23
HIGH COURT OF ANDHRA PRADESH
Decided on October 08,1982

STATE OF ANDHRA PRADESH Appellant
VERSUS
MAHMUD HASAN KHAN MAHARAJ OF MAHMOODABAD Respondents

JUDGEMENT

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 application",;


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