1 WP 2337/2010 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2337 OF 2010 Sanjay Laxman Jadhav .. Petitioner V/s Sukumar Bhau Nirvane .. Respondent Mr. Prashant P. Jadhav for the petitioner. Mr. Manoj A. Patil for the respondent. CORAM : D.G. KARNIK, J. DATE : 5TH JULY 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Patil waives service for the respondent. 3. Heard counsel for the parties. 4. The respondent is a decree holder and the petitioner is a judgment debtor. In Suit No. 249 of 2004, a decree was passed directing the petitioner to pay to the respondent a sum of Rs. 71,563/- together with interest thereon from the date of the suit till payment. The petitioner filed an appeal against that decree along with an application for condonation of delay in filing of the appeal. In that application, the petitioner applied for stay of execution of the decree. The appellate Court rejected the application holding that the petitioner was not vigilant enough 2 WP 2337/2010 to file the appeal in time and therefore he cannot be held to have any equity in his favour for grant of stay. That order is impugned in this petition. 5. Learned counsel for the respondent strongly relying on the provisions of Sub-rule (3) of Rule 3A of Order 41 of the Code of Civil Procedure (for short “the Code”) submitted that the stay for execution of the decree cannot be granted unless the delay is condoned. 6. In Bhagwan v. Khachrulal, 1987 (2) Bom. C.R. 153, a Division Bench of this Court has held that provision of Sub-rule (3) of Rule 3A of Order 41 of the Code are not mandatory but are directory. When a provision is mandatory, it must be strictly complied. When a provision is directory, substantial compliance is enough. Substantial compliance in ordinary sense would be that the person applying for stay for execution of a money decree may be granted stay for execution of the decree if he deposits the decretal amount in the Court as a condition for stay of execution of the decree. 7. Relying upon a decision of the Supreme Court in Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co., (2005) 4 3 WP 2337/2010 SCC 1, counsel for the respondent submitted that in case of a money decree the Court has a discretion permitting furnishing of a security instead of insisting on deposit in cash. 8. Counsel for the petitioner submits that the petitioner has already deposited in the trial Court a sum of Rs.50,000/- out of the decretal amount of Rs.71,563/-. In this view of the matter, it would be appropriate to grant stay to the execution of the decree subject to the petitioner depositing the balance principal decretal dues of Rs.21,563/- and furnishing security to the satisfaction of the Court for payment of interest as ordered in the decree. Ordered accordingly. The balance amount of Rs. 21,563/- shall be deposited in the trial Court within 2 weeks and the security for the interest to be calculated as per the decree shall be furnished in the trial Court within 4 weeks. Subject to the aforesaid deposit and furnishing of security, the execution of the decree is stayed till the disposal of the delay condonation application and the appeal. Liberty to the respondent to withdraw the principal sum deposited in the Court. 9. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)