THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.1227 OF 2011 Dated:08.04.2011 Between: J.Sahadevaiah .. Petitioner And Smt.N.P.Suguna .. Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.1227 OF 2011 ORDER: The petitioner is the owner of a building bearing ground floor and first floor with Municipal Nos.13-7-935 and 13-7-935/B in Tirupati. The first floor portion was allegedly let out to the respondent for a period of 11 months. After expiry of the lease, it is alleged that the respondent also occupied the ground floor, but did not vacate the premises nor paid the rents. The petitioner instituted O.S.No.469 of 2006 on the file of the Court of the Principal Senior Civil Judge, Tirupati, for eviction. The suit was decreed on 31.07.2010. Being aggrieved, the respondent filed A.S.No.174 of 2010 on the file of the Court of the V Additional District Judge, Tirupati. The respondent also filed I.A.No.1074 of 2010 under Order XLI Rule 5 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) for stay of the decree of the trial Court. By order dated 08.02.2011 the learned District Judge stayed the execution of the decree on condition of the respondent depositing the arrears of rent and suit costs on or before 10.03.2011. This is the subject of the present Civil Revision Petition under Article 227 of the Constitution of India. The counsel for the petitioner submits that the petitioner filed the suit for eviction, recovery of arrears of rent from the date of the suit and damages for ground floor portion. The same was decreed and therefore the learned District Judge ought not to have stayed the decree without directing the respondent from depositing the amount towards damages also. The submission of the counsel is wholly misconceived. Order XLI Rule 5 of CPC enables the appellate Court to stay the decree by imposing conditions or by asking the applicant to give security for the due performance of the decree which may ultimately bind upon him. Therefore, in every case the appellate Court has to exercise its discretion. If there is any statutory guidance for exercising such discretion, the same cannot be ignored. In the opinion of this Court, the statutory guidance in this regard is available in Order XV-A of CPC as amended by the High Court of Andhra Pradesh. Order XV-A Rule 1 of CPC reads as under. (1) In a suit for recovery of possession, on termination of lease, or licence, with or without a prayer for recovery of arrears of rent, or licence fee, known with whatever description, the defendant, while filing his written statement, shall deposit the amount, representing the undisputed arrears, calculated upto that due into the Court and shall continue to deposit such amount, which becomes payable thereafter within one week from the date on which it becomes due, till the judgment is rendered in the suit. A bare perusal of the same would show that in every suit for recovery of possession, it is incumbent on the part of the defendant to deposit the undisputed arrears calculated upto the due date and continue to deposit such amount. The appellate Court has not ignored this principle. The question whether the respondent occupied the ground floor portion and therefore liable to pay damages appears to be at large in the appeal. Therefore, the petitioner cannot insist that the first appellate Court should pass an order directing the respondent to deposit the rents. Indeed, as per Rule 2 of Order XV-A of CPC, if the defendant commits default in making deposits, the defence can be struck of. Even in this case, it is always open to the petitioner to move an application, if there is default on the part of the respondent. The Civil Revision Petition is devoid of merits and is, accordingly, dismissed. There shall be no order as to costs. _______________ (V.V.S. RAO, J) 08.04.2011 KH