Dilip Kumar Seth, J. - (1.) THIS First Appeal has been preferred against the judgment and decree passed on a Reference under Section 18 of the Land Acquisition Act, arising out of an Award passed in the connected Land Acquisition proceedings. The appeal has since been admitted by an order dated 27th January, 1997 with a direction that application for stay may be listed before the appropriate bench. The appellant, U.P. State Industrial Development Corporation Limited, has filed an application for stay of the operation of the judgment and decree, appealed against, during the pendency of appeal. Learned counsel for the respondents opposed the said application. The learned counsel for the respondents did not ask for any time to file counter affidavit. He proposed to contest the application for stay purely on the question of law, for which according to him, there was no necessity of filing any counter affidavit. According to learned counsel for the respondents in view of Order 41 Rule 1(3) of the Code of Civil Procedure the decree being money decree the appellant is bound to deposit the amount while preferring appeal. He also refers to Order 41 Rule 5(5) and contends that unless he deposits the said amount or furnishes security no interim order would be passed in favour of the appellant.
(2.) LEARNED counsel for the appellant, on the other hand, contends, that enhancement of the amount in reference being excessive and exorbitant this is not a fit case where Order 41 Rule 1(3) would be applied in its full force. According to him it is the court's discretion. He further contends that in view of Order 27 Rule 8 -A of the Code of Civil Procedure may come in rescue of the appellant with regard thereto. According to him the Award has been enhanced more than by five times. The learned counsel for the respondents contends relying on the decision in the case of New Okhla Industrial Development Authority v. Mahendra Singh and others : 1996 (Alld.) ALJ 1883, that the present appeal having been preferred against the money decree it is incumbent upon the appellant to deposit the entire decretal amount. According to him in view of the said judgment it is incumbent upon the appellant to deposit whole of the decretal amount. Therefore, he makes further prayer that the appellant should deposit the balance amount as welt. He further submits that the appellant may be directed to furnish security for the purposes of withdrawing the said amount.
(3.) THE said judgment has laid down a principle, on which normally the stay of execution is to be granted or refused in terms of Order 41 Rule 5 of the Code of Civil Procedure. In the ratio decided in the said case the discretion of the court has been recognised. Therefore, it has never laid down by way of absolute proposition that in each and every case where appeal is preferred against money decree, the court is bound to direct deposit of whole of the decretal amount and that appeal will not be maintainable unless such amount is deposited. Then again Order 41 Rule 1 sub -rule (3) provides that the appellate court may allow the appellant to deposit decretal amount in appeal against the money decree or to furnish such security, as the Court may think fit. The said question was also referred to in the judgment cited by the learned counsel for the respondents. In the said case reference was made to the case of Central Bank of India v. State of Gujarat : AIR 1987 SC 2320, wherein it was held that the High Court can in its discretion either direct for payment of the amount to the decree holder subject to the terms safe -guarding the interest of judgment debtor or direct the amount to be deposited or invested on term of interest so that on disposal of the First Appeal appropriate direction could be given. Thus it is abundantly clear that it is according to the discretion of the court, having regard to the facts and circumstances of the case, suitable order ought to be passed. No absolute proposition or formulas can be laid down. It depends on the facts and circumstances of each individual case.;