1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.507 OF 2010 1. M/s. Maizons Coastline Developers Pvt. Ltd., represented by its Directors. 2. Shri Pradeep Pundalik Ghadi Amonkar, S/o Shri Pundalik Ghadi Amonkar, Married, major of age, businessman, Indian National, Presently residing at La Brag Chambers, Room No.4, First Floor, Above Old Mapusa Clinic, Mapusa, Bardez, Goa. 3. Shri Sunil Dattaram Divkar, S/o. Shri Dattaram Divkar, major of age, married, businessman, Indian National, resident of Kalinidi Feira, Alta Mapusa, Bardez, Goa. …. Petitioners V/s. 1. Mr. Santan Jovito Monteiro, S/o. Late Mr. Antonio Lourdes Monteiro, aged about 48 years, married, service, and his wife; 2. Mrs. Joy Monteiro, d/o late Mr. Joseph Paes, aged about 48 years, married, housewife, both Indian Nationals, residents of Flat No.F-3, Shiv Smruti Apartments, Feira Alta, Mapusa Goa. 3. Economic Development Corporation Ltd., having its office at E.D.C. House, First Floor, Dr. Atmaram Borkar Road, P.O. Box 275, Panaji, Goa. …. Respondents Mr. Anthony D'Silva, Advocate for the Petitioners. Mr. V. Menezes, Advocate for Respondents Nos.1 & 2. 2 CORAM : N.A. BRITTO, J. DATE : 4th AUGUST, 2010 JUDGMENT : Heard. Rule. By consent, heard forthwith. 2. In this Writ Petition, the petitioners/defendants have assailed the order of the first appellate Court dated 18/06/2010 by which the defendants have been directed to deposit the decreetal amount of Rs.5,00,010.30 with interest at the rate of 18%, after an application was filed by the respondents/plaintiffs under Order 41, Rule 1(3), C.P.C. 3. There is no dispute that the respondents/plaintiffs have filed an application for execution of the said decree and the same is pending. The defendants' first appeal was admitted by this Court before it was sent to the District Court in view of the amendment to the Goa Civil Court Act. Thereafter, on 11/06/2010, the plaintiffs filed the said application purporting it to be an application under Order 41, Rule 3, C.P.C. and the same came to be granted by the learned first appellate Court by order dated 18/06/2010. 4. Shri D'Silva, learned Counsel appearing on behalf of the petitioners/defendants submits that there was no application filed by the defendants for stay of execution and, therefore, no order could have 3 been made by the learned first appellate Court to deposit the decreetal amount and in this context learned Counsel has placed reliance on the decision reported in the case of B.P. Agarwal and Anr. V/s. Dhanalakshmi Bank Ltd. & Ors. (AIR 2008 SC 1431) and also on the decision of the case of Kayamuddin Shamsuddin Khan V/s. State Bank of India (1998 (8) SCC 676). 5. On the other hand, Shri Menezes, learned Counsel on behalf of the respondents/plaintiffs has submitted that both the cases cited by Shri Silva deal with the appeals at the stage of admission, and therefore are not applicable to the facts of this case and learned Counsel has placed reliance on the judgment of this Court in Bhogvati Sahakari Sakhar Karkhana Limited V/s. M/s. Chaugule & Sons (2003 (2) Mh.L.J. 562) wherein this Court had observed as follows: 13. The above judgment of the Apex Court is inapplicable on the question posed herein. In that judgment the order of deposit was made as a condition precedent for admission of the appeal. That is not the case here. The Apex Court was not considering the issue whether or not suo motu order can be passed under Order 41, Rule 1(3) in absence of any prayer in this behalf. The decision of the Apex Court does not lay down any proposition that where the appellant is not seeking stay of the decree the Court cannot order deposit. The reading of the above judgment of the Apex Court in its proper perspective would mean that while considering the application seeking stay of the execution of the decree, the same could be rejected for non-compliance with the directions directing deposit under sub-rule (3) of Rule 1 of Order 41 of Civil Procedure Code. The Apex Court judgment only says that the Court could not give a direction for dismissal of the appeal for such non- compliance. The ratio laid down is absolutely clear that Rule 4 1(3) cannot be used as a condition precedent for valid presentation of appeal. In this case, at this stage, I am not faced with such question as the appeal is admitted without putting any condition in this behalf. Thus, on fair reading, the Apex Court judgment also contemplates or pre-supposes pre-existing order under sub-rule (3) of Rule 1 of Order 41. To refuse to grant application seeking stay on the ground of no compliance of the order under Order 41, Rule 1(3), there has to be a prior order in this behalf. The judgment nowhere said that no such order could be passed in the appeal. The view taken by me thus is in consonance with the view expressed by the Apex Court. 6. Order 41, Rule 1(3) provides that 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. Rule 5, Order 41, deals with stay of execution by the appellate Court and provides that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. The explanation below sub-rule of Rule 5 of Order 41 provides that an order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court 5 shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance. Rule 11 of Order 41 deals with the hearing of the appeal. 7. The controversy sought to be raised by the plaintiffs by their application dated 30/04/2010, filed under Order 41, Rule 1(3) C.P.C. appears to be no longer res integra. The Apex Court in MGMT of M/s. Devi Theatre V/s Vishwanath Raju (2004 AIR SCW 3102) observed as follows: “It is a different matter, in case the appellant prays for stay of the execution of the decree or for any order by way of an interim relief during the pendency of the appeal, it is open for the Court to impose any condition as it may think fit and proper in the facts and circumstances of the case. Otherwise imposing a condition of deposit of money subject to which an appeal may be admitted for hearing on merits, is not legally justified and such order cannot be sustained.” 8. A Division Bench of this Court (to which I was a party) in M/s. Greaves Cotton Ltd. V/s. M/s. Sapna Ceramics Private Ltd. (2004 (2) GLR 475) observed that the observations of their Lordships in the case of MGMT of M/s. Devi Theatre V/s Vishwanath Raju (supra) clearly suggest that the Supreme Court was of the view that the occasion to direct deposit or impose any condition arises where appellant applied for stay and further held that the judgment in Bhogvati Sahakari Sakhar Karkhana Limited V/s. M/s. Chaugule & Sons (supra) does not lay 6 down the law correctly. The Division Bench further held that: Order 41, Rule 1(3) need not be read in isolation and must be read schematically along with Order 41, Rule 5(5). Both the sub-rules (3) & (5) were introduced by the same Amending Act and, read together, clearly leads to only one conclusion, namely, that the Court must refuse stay, if the appellant does not deposit the amount as directed. But, this presupposes that the appellant has prayed for stay. We are of view that Parliament has presumed that there would be no occasion for directing the deposit of the decreetal amount by the appellant, if the appellant does not pray for a stay, since the remedy of execution is always available to the respondent/decree holder. Now, the Apex Court in B.P. Agarwal and Anr. V/s. Dhanalakshmi Bank Ltd. & Ors. (supra) following MGMT of M/s. Devi Theatre V/s Vishwanath Raju (supra) has come to the conclusion that in the absence of any application for stay the High Court could not have passed the order impugned. The Court also noted in that case, like in the case at hand, that there is no direction that in case of non- payment, the appeal is to be dismissed. Consequently, the direction for deposit was vacated. The Apex Court quoted with approval, the following observations in MGMT of M/s. Devi Theatre V/s Vishwanath Raju (supra) as follows: “But admission of the appeal, subject to condition of deposit of some given amount, is not envisaged in the provision as contained under Section 96 read with Order 41, Rule 11, CPC. The deposit of money would obviously have no connection with the merits of the case, which alone would be basis for admitting or not admitting an appeal filed under Section 96, CPC. Further, imposition of condition that failure to deposit the amount, would result in dismissal of the appeal compounds the infirmity in the order of conditional admission. It is a different matter, in case the appellant prays for 7 stay of the execution of the decree or for any order by way of an interim relief during the pendency of the appeal, it is open for the Court to impose any condition as it may think fit and proper in the facts and circumstances of the case. Otherwise imposing a condition of deposit of money subject to which an appeal may be admitted for hearing on merits, is not legally justified and such order cannot be sustained.” 9. In my view, in the light of the law laid down by the Apex Court in the case of MGMT of M/s. Devi Theatre V/s Vishwanath Raju (supra) followed by the Division Bench of this Court in M/s. Greaves Cotton Ltd. V/s. M/s. Sapna Ceramics Private Ltd. (supra) and now reiterated by the Apex Court in B.P. Agarwal and Anr. V/s. Dhanalakshmi Bank Ltd. & Ors. (supra), the impugned order deserves to be set aside. 10. Consequently, the Writ Petition is allowed and Rule made absolute in terms of prayer clause (a) with no order as to costs. 11. Learned Counsel submit that the appeal is ready for hearing. The learned first appellate Court is therefore hereby directed to dispose of the same as expeditiously as possible and in any event within a period of 3 months from the date of receipt of a copy of this judgment. N.A. BRITTO, J. NH/-