C.R. No.4973 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4973 of 2010 (O&M) Date of Decision: 9.8.2010 Suresh Kumar ……Petitioner VERSUS Om Parkash ……Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Sanjiv Gupta, Advocate for the petitioner. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. Learned Counsel for the petitioner vehemently argued that against the money decree, the appeal was filed before the first Appellate Court. In an appeal against the money decree, appellant is required to deposit decreetal amount or furnish the security as required under Order 41 Rule 1 (3) C.P.C. He further states that operation of the money decree was stayed by the first Appellate Court, whereas the respondent failed to make the deposit or furnish C.R. No.4973 of 2010 (O&M) -2- the security as required under Order 41 Rule 1(3) and Rule 5 C.P.C. 2. Order 41 Rule 1(3) and Rule 5 (5) are being reproduced herein to appreciate the arguments advanced by learned Counsel for the petitioner:- “1(3)..Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. 5(5).. Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.” 3. From the perusal of the provisions of Rules 1(3) and 5(5) of Order 41 of the Code of Civil Procedure, this Court is of the opinion that whenever an appeal is filed against the money decree then with the memorandum of appeal either money decreed should be deposited or with the liberty of the Court security should be furnished to the satisfaction of the first Appellate Court to maintain the first appeal. Further this Court is of the opinion, if any stay is sought against the execution of the money decree then of course either money decreed should be deposited as per the direction of the C.R. No.4973 of 2010 (O&M) -3- first Appellate Court or security should be furnished as per the direction and discretion of the first Appellate Court before grant of the stay against the money decree. It seems from the perusal of the impugned order that learned first Appellate Court has lost sight of this import aspect. 4. Present petition is allowed. Impugned order dated 20.3.2010 is set aside without issuing any notice to the respondent and it is directed that first Appellate Court shall pass fresh appropriate order keeping in mind Order 41 Rules 1(3) and 5(5) before proceeding further with the appeal. It is made clear that if respondent herein feels aggrieved from the order of this Court, he shall be at liberty to approach this Court with an advance copy to the Counsel opposite. ( ALOK SINGH ) 09th August, 2010 JUDGE ashish