BANSIDHAR Vs. PRIBHU DAYAL
LAWS(RAJ)-1952-10-22
HIGH COURT OF RAJASTHAN
Decided on October 22,1952

BANSIDHAR Appellant
VERSUS
PRIBHU DAYAL Respondents


Referred Judgements :-

A.A.KHAN V. AMEER KHAN [REFERRED TO]
MOVIE ENTERPRISES V. M.S.PERIASAMY MUDALIAR [REFERRED TO]
ANANDI PRASHAD VS. GOVINDA BAPU [REFERRED TO]



Cited Judgements :-

GIRNAR FOOD AND BEVERAGES PRIVATE LIMITED VS. GODFREY PHILLIPS INDIA LIMITED [LAWS(DLH)-1997-10-12] [REFERRED]
PRABHU DAYAL VS. MAHADEV NATH [LAWS(RAJ)-1972-1-7] [REFERRED TO]
STATE OF GUJARAT VS. CENTRAL BANK OF INDIA AHMEDABAD [LAWS(GJH)-1986-4-19] [REFERRED]
M. P. State Road Transport Corporation VS. State of M. P. [LAWS(MPH)-1965-10-9] [REFERRED TO]
BRAJMOHAN BOSE BENIMADHAV VS. KISHORILAL KISHANLAL [LAWS(MPH)-1954-7-1] [REFERRED TO]
GIRNAR FOOD AND BEVERAGES PVT. LIMITED VS. GODFREY PHILLIPS INDIA LTD. [LAWS(DLH)-1997-9-124] [REFERRED TO]
RAJWANT SINGH VS. MAJOR SUKHDEV SINGH [LAWS(P&H)-1976-9-40] [REFERRED]


JUDGEMENT

Dave, J. - (1.)This case comes today for determination of the appellant's application under Order 41, Rule 5, Civil P. C. The respondent had filed a suit against the appellant in the Court of the Civil Judge, Alwar for Rs. 3437/8/- on account of the loss sustained by him for alleged breach of contract committed by the appellant in refusing to take delivery of the goods. The trial Court dismissed the suit but on the plaintiff's appeal to the District Judge, Alwar, a decree for Rs. 2750/- with proportionate cost in both the Courts has been given in his favour. The defendant has, therefore, come here in second appeal and presented a petition for staying the execution of the decree pending the decision of this appeal. On 29-8-1952, notice was issued to the opposite party to show cause why the stay application be not allowed, and an ad interim order to stay the execution was passed on that date. The appellant's learned advocate wants the order to be made absolute while the respondent's learned advocate seriously contests it on the ground that the appellant has sufficient means to pay up the decree and no substantial loss is likely to occur to him.
(2.)It appears from the appellant's application dated 29-8-1952, that he has requested for staying the execution on the following grounds: .
"1. that the appellant has no ready money to pay and at the same time payment of the heavy sum is difficult in these days of financial stringency. 2. that if the appellant transfers his property it snail fetch a very low price below the fair one and he will suffer substantial loss. 3. If the appellant is arrested and sent to Civil prison he will lose all his business and reputation."

(3.)In support of his application he has filed an affidavit. The respondent on the other hand has stated in his reply that it is entirely incorrect to say that the appellant is unable to make payment of the decretal amount. It is alleged that the marketable goods and cash in addition to his immovable property and jewellery are in no way less than 50,000 rupees, and that he is carrying on business in Alwar market on a large scale. He has also filed his own affidavit and also three other affidavits of Ramji Lal, Kedar Nath and Ladu Ram to the same effect. He has argued that this is only a money decree against the appellant and this Court should not stay the proceedings. In support of his argument he has referred to the case of -- 'Dhunjibhoy Cowasji Umrigar v. Lisboa' 13 Bom 241 (A), where it was held that
"A party appealing against a decree, which directs him to pay money, may obtain stay of execution of decree, so far as it directs payment on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted."
The appellant's learned advocate contends that under Order 41, Rule 5 the law makes no distinction between money decrees and other kinds of decrees and that in case a judgment-debtor suffers substantial loss on account of execution of the decree the appellate Court should stay the execution. He has referred to the case of -- 'A. A. Khan v. Ameer Khan', AIR 1950 Mys 11 (B) and -- 'Movie Enterprises v. M. S. Periasamy Mudaliar', AIR 1952 Mys 78 (C). In the former case it was held that
"The Court can stay execution of money decree pending appeal on such security as it deems fit in proper cases in which sufficient cause for a stay has been made out. without requiring in all cases that the decree amount should be deposited in Court."
This view was followed in the latter case where it was further observed that
"Order 41, Rule 5 cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in the matter of stay pending appeal. Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. In this view, it. cannot be contended that a decree directing payment of money should not be stayed unless the decree amount is lodged into Court."



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