IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WP(C).No. 26304 OF 2008(F) -------------------------- AS.246/2007 OF II ADDL.DISTRICT COURT,ERNAKULAM OS.582/2005 OF II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: ------------- MYLAADY WAREHOUSING PRIVATE LTD.,REG. OFFICE 38/197, MYLAADY HOUSE, VENNALA P.O., KOCHI -28, REP. BY ITS MANAGING DIRECTOR, MARYKUTTY BABY, W/O BABY THOMAS, RESIDING AT MYLAADY HOUSE, CHANGAMPUZHA CROSS ROAD,EDAPPALLY, KOCHI -24, FROM MYLAADY HOUSE, VENNALA P.O., KOCHI -28. BY ADV. SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL SRI.A.R.DILEEP SMT.SURYA SASI RESPONDENTS: ---------------- 1. SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA, SIDBI TOWER, 15-ASHOK MARG, LUCKNOW, PIN-226001, REPRESENTED BY ITS GENERAL MANAGER. 2. SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA, MERCY ESTATE, 2ND FLOOR,RAVIPURAM, M.G. ROAD,KOCHI -15, REPRESENTED BY ITS GENERAL MANAGER. BY ADV.SRI.PATHROSE MATHAI (SR.) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 26304 OF 2008 ------------------------------------------ Dated this the 1st day of September, 2008 JUDGMENT Petitioner is the plaintiff and respondents the defendants, who are respectively the respondent and appellants in A.S.246 of 2007 on the file of Sub Court, Ernakulam. Challenging the decree for realisation of money in favour of petitioner, respondents filed the appeal. In the appeal, I.A.2007 of 2008 was filed for stay of execution of the decree till disposal of the appeal, under Rule 5 of Order XLI of Code of Civil Procedure. Under Ext.P5 order, learned District Judge granted an order of stay till disposal of the appeal. This petition is filed under Article 227 of Constitution of India challenging Ext.P5 order. 2. The arguments of the learned counsel appearing for petitioner and learned senior counsel appearing for respondents were heard; 3. Learned counsel appearing for the petitioner argued that under clause (c) sub rule 3 of Rule 5 of Order XLI of Code of Civil Procedure, Appellate Court can grant an order of stay only WP(C)26304/08 2 if security has been furnished by the appellant for the due performance of such decree as may ultimately be binding upon him and as under Ext.P5 order no security was directed to be furnished, the order is illegal. The learned counsel pointed out that exemption from furnishing security as provided under Rule 5 was provided only to the Government under Rule 8A of Order XXVII of Code of Civil Procedure and therefore the order was passed in improper exercise of jurisdiction vested and the order is to be quashed. 4. Learned senior counsel pointed out that respondents, the appellants in the first appeal, are financial institutions of the Central Government and the purpose of providing security is to enable respondents in the appeal to get the fruits of the decree and when the respondents are Central Government financial institutions, there is no necessity to pass an order for furnishing security. Learned senior counsel also argued that Ext.P1 order is not amenable for correction under Article 227 of Constitution of India, relying on a decision of Apex Court in Essen Deinki v. Rajiv Kumar ((2002) 8 SCC 400). 5. It cannot be said that a money decree granted by trial Court could be stayed by Appellate Court in an application filed WP(C)26304/08 3 under Rule 5 of Order XLI of Code of Civil Procedure without satisfying the conditions provided under sub rule 3. But when the appellants are financial institutions of the Central Government, I do not find that it is necessary to interfere with Ext.P5 order. The purpose of furnishing security is to enable the plaintiff, who successively obtained the decree from trial Court, can enjoy the fruits of decree if the appeal is dismissed. As that security is available in this case, respondents being the financial institutions of the Central Government, I do not find it necessary to direct furnishing security. In any event the order is not to be set aside in exercise of the supervisory jurisdiction under Article 227 of Constitution of India. In such circumstances the petition is dismissed. Learned District Judge is directed to dispose the appeal expeditiously. M. SASIDHARAN NAMBIAR, JUDGE Okb/-