Shashi Bhushan Lal Das v. Depak Rathore & Anr.

1. By this petition the petitioner, who is the appellant in the first appeal, impugns the orders dated 13.10.2014 and 19.11.2014 by which the 2014:DHC:7008 first appellate court while issuing notice has directed deposit of the decretal amount in Court.

2. No notice is required to be issued in this petition because even in the appeal notices have not yet been issued and the impugned order has been passed at the ex parte stage.

3. There is no provision in the Code of Civil Procedure, 1908 (CPC), including in Order XLI CPC, whereby for consideration of appeals against judgments passing money decrees, decretal amount has to be deposited. It is only pursuant to Order XLI Rule 5 CPC when an appellant in the first appeal seeks interim orders to stay execution of the money decree then direction can be issued for deposit of the decretal amount. There is no statutory provision which provides deposit of the decretal amount as a condition precedent for hearing of the appeal. This is not provided even under Order XLI Rules 6 and 10 CPC, and which provisions have been relied upon by the appellate court.

4. In view of the above the present petition is allowed and the impugned order is set aside. It is made clear that in case the petitioner/appellant in the first appeal, applies for interim orders seeking stay of execution of the impugned judgment and decree passed by the trial court or any other interim orders, the first appellate court at that stage will be entitled to pass appropriate orders in accordance with law for deposit of the decretal amount or security etc etc.

5. Petition is allowed and disposed of in the above terms.

DECEMBER 12, 2014 VALMIKI J. MEHTA, J. vld