Vandana Kasrekar, J. - (1.)The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 15.05.2017 passed by First Appellate Court thereby dismissing the application preferred by the petitioner for vacating the ex-parte order.
(2.)Brief facts of the case are that the petitioner preferred a suit for eviction and mense profit which was decreed by the trial Court. Against the said judgement and decree, the respondent after vacating the suit premises has preferred an appeal to challenge the decree for mense profit. Along with the said appeal, the respondent has filed an application under Order 41 Rule 5 of the C.P.C. The First Appellate Court allowed the said application. The petitioner has challenge the said ex-parte order by filing a writ petition No. 2029/2017, but the same was withdrawn to pursue the application for vacating the order of stay of execution. The First Appellate Court has dismissed the said application for vacating the stay order passed under Order 41 Rule 5 of the C.P.C vide order dated 15.05.2017 on the ground that the Bank has given an undertaking to comply with the decree in the event of dismissal of their appeal. Being aggrieved by that order, the petitioner has filed the present petition.
(3.)Learned counsel appearing on behalf of the petitioner argues that the order passed by the Appellate Court is in contravention of the provisions of Order 41 Rule 5 of the C.P.C. The First Appellate Court has further failed to see that a money decree cannot be stayed unless some amount is deposited by the respondent. He further submits that the respondent/Bank has no scarcity of funds whereas, the petitioner will suffer irreparable loss if the decreetal amount has not been deposited by the respondent/Bank. He further relied on the judgement passed by the Nagpur High Court in the case of Anandi Prashad Vs. Govinda Bapu, (1934) AIR Nagpur 160 as well as the judgement passed by the Andhra High Court in the case of Pamulapati Varadayya Vs. Kommareddi Chinnappareddi and another,1956 AIR(And) 64.