IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 17772 of 2009(O) --------------------------------------- AS.NO.54/2008 OF SUB COURT, PAYYANNUR, OS.NO.163/2004 OF MUNSIFF COURT, THALIPARAMBA. .................... PETITIONER: ------------------- KAPPADAN BALAKRISHNAN, AGED 53 YEARS, S/O.KUNHAPPA, RESIDING AT MORAZHA AMSOM AND DESOM, TALIPARAMBA TALUK. BY ADV. MR.BLAZE K.JOSE. RESPONDENT: ---------------------- B.T.NASEEMABEEVI, D/O.SAHIDA, BAPPMRAMBATH THAYATHILATH VEEDU, CHENGALAYI AMSOM, PARIPPAYI DESOM, TALIPARAMBA TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.17772 of 2009 - O --------------------------------- Dated this the 26th day of June, 2009 J U D G M E N T Petitioner is the appellant in A.S.No.54/2008 on the file of the Sub Court, Payyannur. The above appeal is preferred against the decree passed in O.S.No.163/2004 on the file of the Munsiff Court, Thalipparamba in which petitioner was the defendant. Suit was one for money which was decreed in favour of the respondent/plaintiff. With the appeal, petitioner/plaintiff moved an application under Order XLI Rule 5 CPC for staying the execution of the decree. Learned Sub Judge disposed that application directing the appellant to deposit the decree amount (Rs.41,000/-) before the executing court. Ext.P1 is the copy of that order. Petitioner filed a review petition against that order seeking permission to furnish security for the decree amount. The review petition was dismissed. Ext.P2 is the copy of that order. Impeaching the correctness and propriety of Ext.P1 and P2 orders, petitioner has filed the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. W.P.(C).No.17772 of 2009 - O 2 2. Having regard to the facts and circumstances presented and perusing the order impugned in the writ petition, I find no notice to the respondent is necessary, and it is dispensed with. 3. To stay the operation of the decree impugned in an appeal as covered by Order XLI Rule 5 CPC, the court has to pass appropriate orders safeguarding the interest of the decree holder, especially, where the suit decreed is one for money. But the course followed by the court below directing the petitioner to deposit the decree amount to stay the operation of the decree impugned in the appeal, at any rate, was not warranted by the above rule. The petitioner could have been directed to furnish security for the decree amount, perhaps, with the cost in the appeal also to secure and safeguard the interest of the decree holder. So much so, Ext.P1 order is modified directing the petitioner to furnish security for a sum of Rs.50,000/- to the satisfaction of the appellate court, within two weeks from the date of receipt of a copy of this judgment. The respondent/decree holder shall also be given notice of the W.P.(C).No.17772 of 2009 - O 3 security furnished by the petitioner/appellant before an order as to its satisfaction is passed by the court. The execution of the decree impugned in the appeal shall stand stayed for a period of one month from today, and continuance of the stay thereafter will be subject to orders by the appellate court on satisfaction of the security to be furnished by the petitioner/appellant. The writ petition is disposed of as above. Send a copy of the judgment to the Sub Court, Payyannur, and hand over a copy to the counsel for the petitioner on usual terms. S.S.SATHEESACHANDRAN, JUDGE. bkn/-