IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 WP(C).No. 24944 of 2008(T) -------------------------------------- I.A. NO.2304/2008 IN AS. NO.127/2008 OF THE IIND ADDL. DISTRICT COURT, THIRUVANANTHAPURAM. ....... PETITIONER: ------------------ A.G.GEORGE S/O. K.GEEVARGHESE, AIRUVELIL, MANNANTHALA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.VPK.PANICKER RESPONDENTS: ----------------------- 1. JOHN P., THOMAS,. S/O. LATE C. THOMAS, PEEDIKAYIL PUTHEN BUNGLOW, CHEPARA, VALIYODE P.O., KOTTARAKKARA. 2. JOLLY RAJAN, W/O. RAJAN, VANIYAM PADIKKAL KURIYANNOOR P.O., KOZHENCHERY, THIRUVALLA, PATHANAMTHITTA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No.24944 OF 2008 ............................................ DATED THIS THE 19th DAY OF AUGUST, 2008 JUDGMENT Petitioner is the respondent in A.S.121 of 2008 who is the plaintiff in O.S. 3 of 2000 on the file of Sub Court, Thiruvananthapuram. A decree for damages was passed in favour of petitioner in O.S. 3 of 2000 which is challenged by respondents in A.S.127 of 2008. I.A.2304 of 2008 was filed for stay of execution of the decree. Under Ext.P5 order, learned District Judge granted an order of stay till the disposal of the appeal, which is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner was heard. 3. In view of the order to be passed in this petition, it is not necessary to issue notice to the respondents, compelling them to appear before this court. 4. The argument of the learned counsel is that while granting an unconditional order of stay under Ext.P5, learned District Judge did not consider the mandatory provisions of sub- rule 3(c) of Rule 5 of Order XLI of Code of Civil Procedure. There is force in the submission. Ext.P5 order shows that learned WP(C) 24944/2008 2 District Judge did not consider the question whether an order of unconditional stay of execution of the money decree could be granted without directing to furnish security. Hence Ext.P5 order is quashed. Additional District Judge, Thiruvananthapuram is directed to pass fresh orders in I.A.2304 of 2008, after hearing the parties and taking into consideration the provisions of Rule 5 (3)(C) of Order XLI of Code of Civil Procedure. M.SASIDHARAN NAMBIAR, JUDGE lgk/-