- (1.) D. K. Seth, J. While admitting the appeal on an application for stay of execu tion of judgment and decree dated 7-2- 1992 passed in Land Acquisition Reference Case No. 19 of 1990, this Court on 8th January, 1993 passed an order that the appellant may deposit the entire decretal amount in the executing court within three months. In case such amount is deposited, it will be open to the respondents to withdraw half of the amount without furnishing security and remaining half of the amount upon furnish ing security to the satisfaction of the execut ing court.
(2.) A Special Leave Petition was moved before the Hon'ble Supreme Court against the said order, in which the Apex Court was pleased to stay the operation of that part of the order by which 50% was to be withdrawn without furnishing security, to the extent that the appellant need not deposit the said half of the amount. But ultimately while disposing of the Special Leave Petition, the Apex Court directed the deposit of the balance 50% amounting to Rs. 12,52,202. 15 which may be withdrawn by the respondent upon furnishing bank guarantee. Admitted ly the entire sum has been deposited. Learned counsel for the respondent admits that the respondent has withdrawn the en tire sum in terms of the order passed by the Apex Court, namely by furnishing security he has withdrawn 50% and by furnishing bank guarantee he has withdrawn 50%. The entire amount deposited has been withdrawn. The respondents on the other hand claim that the said amount should include interest solatium amounting to Rs. 4,34,601. 17 and had accordingly ap proached the executing court for direction to the appellant to deposit the said amount. By an order dated 9-8-1996, the executing court directed the appellant to deposit the said amount. Against the said order dated 9th August 1996, the appellant had preferred an appeal being First Appeal No. 430 of 1994. By order dated 21-3-1996, the said appeal was dismissed as incompetent by this Court on the ground that the said order was an order of interpretation of the award and not an award itself, therefore, no appeal is maintainable under Section 54 of the Land Acquisition Act against the said order. In the said order, liberty was granted to the appellant to approach this Court during pendency of the appeal against the award itself. Accordingly the present application has filed in the appeal for stay of the opera tion of the said order dated 9-8-1996. In the facts and circumstances of the case, it appears that the amount is payable to the respondents by the appellant, which is a part of the State. It cannot be said that the amount at the hands of the defendant appel lant is insecured, so far as the respondents are concerned. It cannot be said that in case the appeal fails the respondents cannot recover the amount from the defendant ap pellant. The responsibility of payment of the appellant is also supported by the State. The provision of Order XLI, Rule 1 (3) of the Code of Civil Procedure was incor porated to secure and safeguard the interest of the decree holder, having regard to safeguard the interest of the judgment debt or as well, as has been laid down in the case of Central Bank of India v. State of Gujrat, AIR 1987 SC 2320. Having regard to the facts and circumstances of the present case it can not be said that the money payable by the appellant is insecured so far as the respondent is concerned. The question of calculation of inter est would be the final decision for execution of the award. Deposit of security while granting the order of stay is ensured only for the purpose that the execution may not be avoided and it does not operate as execution of the whole of the decree itself. Since the appeal against the order dated 8-1-1993 has not recorded any order staying execution upon deposit of the amount as directed. The appellant has shown his bona fide by depositing an amount above Rs. 25,00,000 which has already been withdrawn by the respondent.
(3.) THE learned counsel for the respon dent insists that in case the entire amount is not directed to be deposited in that event appellant should furnish adequate security as provided in Order XLI, Rule 1 (3) of the CP. C. Sri P. K. Bisaria. learned counsel op poses the said prayer and contends that by reason of Order XXVII, Rule 8-A the ap pellant is not required to furnish security m terms of Order XLI, Rule 5 of the Code. Order XLI, Rule 1 (3) requires the appellant to deposit decretal amount or fur nish security in respect thereof as the Court may direct, according to its discretion. Such direction or deposit is not dependent on the question of grant of stay. The same is general proposition. Such order can be passed even when no prayer for stay is asked for or even when stay is being refused. Whereas Order XLI Rule 5 is dependent on the question of stay. But however, the court may impose a condition of compliance of Rule 1 (3) of Order XLI when considering the question of grant of stay or granting such stay. Order XLI Rule 5 (5) makes the situa tion clear where it provides that in case the appellant fails to make deposit or furnish security, if ordered by the Court, the execu tion of the decree shall not be stayed. Sub-rule (5) of Rule 5 stands substituted by means of Allahabad Amendment vide Notification dated 3-10-1993 as published on 1-1-1994 providing: " (5) Notwithstanding anything contained in the foregoing sub-rules where the appeal is against a decree for payment of money, the Appel late Court shall not make an order staying the execution of the decree, unless the appellant shall, within such time as the Appellate Court may allow, deposit, the amount disputed in the appeal or furnish such security in respect there of as the Appellate Court may think fit. " Notification No. 552/vii-d-134, dated 3-10-1993 published in U. P. Gazette Part-2, dated 1-1-1994" According to the said provision the appel lant is not entitled to any order of stay unless he deposits the disputed amount or fur nishes security in respect thereof as the court may direct. Therefore, independent of Rule 1 (3) by reason of Allahabad Amend ment the court may direct deposit of fur nishing of security in terms of Order XLI, Rule 3 (4) of the Rules.;