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Case Number

First Appeal No. 1125 of 1993

Advocates

U. S. Awasthi
S. C.

Judges

Binod Kumar Roy
N.B Asthana, JJ.

Acts

India, (1980) 2 UPLBEC 858.6. Order XLI Rule 5 of the Code of Civil Procedure,
provisions of Order XLI Rule 5(1), (3), (4) & (5) of the Code of Civil Procedure,
Order 41 Rule 5 of the Code of Civil Procedure (hereinafter referred
sub-rule (3) of Rule 1 of Order 41 of the Code of Civil Procedure.
sub-rule (3) of Rule 1 of Order 41 alongwith sub-rule (5) of Rule 5
provisions of Order XLI Rule 5 of the Code of Civil Procedure
Sections 23 and 4 of the Land Acquisition Act;
SECTION 5 LIMITATION ACT
Order XLI Rule 11 of the Code
Order XLI Rule 5 of the Code
sub-rule (1) or sub-rule (2)
provisions of sub-rule (3),
Amendment of sub-rule (5),
Order 41 Rule 1(3) CPC.
Order 44 Rule 1(3) CPC,
sub-rule (5)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This order disposes of an application made by the appellant under Order XLI Rule 5 of the Code of Civil Procedure (the Code), filed on 6-9-1995, seeking a stay of execution of a judgment and award dated 6-4-1993 passed by the District Judge, Ghaziabad in L.A.R. No. 58 of 1991, pending the appeal.

Relevant facts as stated in the opinion:

For development of NOIDA, a notification for acquisition of about three acres of land belonging to Respondents 1–3 was issued on 8-8-1988; possession was taken by the State of U.P. on 4-10-1989.
The Subordinate Land Acquisition Officer (S.L.A.O.) awarded compensation at Rs. 31.50 per sq. yard; Respondents 1–3 claimed Rs. 250 per sq. yard.
After evidence from both sides, the trial court (District Judge) awarded compensation at Rs. 93.75 per sq. yard by judgment dated 6-4-1993; that judgment is the subject of the appeal.
The appellant applied under Order XLI Rule 5 to stay execution during the pendency of this appeal, alleging the enhancement was arbitrary and violated Sections 23 and 4 of the Land Acquisition Act, that it lacked funds to meet the enhanced award, and that execution steps (including attachment of appellant's accounts) were already causing operational difficulties.
The appellate Bench heard the stay application and, after analysis, rejected the stay but admitted the appeal for hearing and issued directions for service, filing of paper books and further steps.

Legal Issues Presented

Whether the Appellate Court should exercise its discretion under Order XLI Rule 5 CPC (as amended by the Allahabad amendment to sub-rule (5)) to stay execution of a money decree pending appeal.
If discretion is to be exercised, whether the appellant has shown "sufficient cause" and satisfied the statutory conditions in sub-rule (3) — substantial loss, absence of unreasonable delay, and furnishing of security — and the additional requirement under amended sub-rule (5) in a money decree case.
Whether earlier orders or precedents (including orders directing partial deposits or other terms) create binding precedent on the Bench such that a stay should be granted in the present factual matrix.
What interim regime (deposit, security, or other safeguards) is appropriate where an appeal against a money decree is admitted but the appellant claims inability to pay and alleges irreparable injury from execution.

Arguments of the Parties

Appellant's Arguments

The enhancement of compensation by the trial court is arbitrary and illegal, not complying with Sections 23 and 4 of the Land Acquisition Act.
The appellant lacks funds to meet the enhanced award; attachment of appellant's accounts in execution proceedings is causing operational difficulties in carrying out developmental projects.
The appellant will suffer irreparable injury if the decree is executed — it cannot realise recoveries from persons liable and may not be able to perform public functions.
The appeal contains valid grounds likely to succeed; other similar appeals have been admitted and stays granted (relying on a prior stay order in E.A. No. 849 of 1993 and several reported decisions), so by precedent this Court should order a stay.
Alternatively, under the Allahabad amendment to sub-rule (5) of Order XLI Rule 5, an order could be made requiring deposit of the enhanced amount or furnishing of security, with conditions preventing withdrawal by respondents without restraint.
The appellant undertook to expedite the appeal by filing paper books and relied on specific provisions of Order XLI Rule 5(1),(3),(4) & (5) CPC and cited a number of authorities supporting partial-deposit or conditional stay orders.

Respondents' Arguments

The opinion does not contain a detailed account of the respondents' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nawab Sidhee Nuzur Ally Khan v. Oojoodhyaram Khan (Ragah) (10) Moor Ind App 3222 (Privy Council)	An application for stay must be founded on (i) that a serious injury will result without the stay, and (ii) the applicant must come promptly to make the application.	The Court cited this to stress the twin requirements of serious injury and promptness and observed the appellant's substantial delay in filing the stay application (appeal filed 13-10-1993; stay application filed 26-9-1995), weighing against a stay.
Mehta Teja Singh & Co. v. Grindlays Bank Ltd. (1982) 3 SCC 199 (referenced)	High Court's grant of stay of a money decree was viewed critically by the Apex Court; the Supreme Court directed deposit of decretal amount within a time with liberty to withdraw on furnishing bank guarantee.	The Bench relied on this to indicate that where stay of a money decree is contentious the correct course is to require deposit or provide proper safeguards (e.g., bank guarantee), and the appellant's attempt to distinguish Mehta was not accepted.
Central Bank of India v. State of Gujarat, (1987) 4 SCC 407 : AIR 1987 SC 2322	The High Court in its discretion could direct payment of amount to decree-holder subject to terms safeguarding the judgment-debtor (redeposit with interest if decree reversed), or direct deposit/investment on terms so that appropriate directions can be given on disposal of appeal.	The Court treated this case as a guiding formulation for a protective regime (redeposit with interest or deposit/investment) and applied it to reject an unconditional stay while indicating possible protective measures in other contexts.
Mool Raj v. Murti Raghunathji, AIR 1967 SC 1386	A stay order is akin to an injunction and thus the principles applicable to injunctions are relevant.	The Court invoked this to import the three-fold injunction test (prima facie case, balance of convenience, irreparable injury) when assessing whether to restrain respondents from utilising the decretal money.
Hazrat Surat Shah Urdu Educations Society v. Abdul Saheb, 1988 (5) Serv LR 768 : (1988) 4 JT (SC) 2232	No temporary injunction should be issued unless prima facie case, balance of convenience, and irreparable injury are shown.	The Bench used this authority to analyse whether the appellant had shown the required ingredients to restrain respondents from using the decretal amount; the Court concluded the appellant had not met these thresholds.
Tata Chemicals Ltd. v. Sadhu Singh, 1994 All WC 982/983	Discussed stay orders where conditional deposit (half of enhanced amount) was accepted; explored maintainability of appeal where entire decretal amount was not deposited and interpretation of relevant CPC provisions.	The judgment was examined; the Court noted factual differences and discussed the extent to which partial deposit conditions were imposed elsewhere, but found no direct binding ratio to compel a similar order here.
Prabhakar v. Vinayakrao, AIR 1983 Bom 301	Position that deposit of decretal amount or furnishing security is not a condition precedent for filing an appeal; it bears on grant of stay only.	Relied upon in discussion of maintainability and whether non-deposit rendered the appeal incompetent; Court agreed deposit is not a condition precedent to maintainability but relevant when considering stay.
Miss Nirmala Chaudhary v. Bisheshar Lal, AIR 1979 Del 26	Cited among authorities dealing with stay/deposit issues under Order XLI Rule 5.	The Court listed it among precedents considered in the broader discussion on stays and deposits; no specific ratio from this decision was treated as directly controlling in the present facts.
J. Laxmi Kantham v. Uppala Rajamma, AIR 1982 AP 337	Decision cited in the context of stay/deposit jurisprudence.	The Court noted it as one of several authorities but observed that many of the authorities relied upon by the appellant were not binding here on facts and were distinguishable.
State of Andhra Pradesh v. Mahmud Hasan Khan Maharaj Kumar of Mahamoodabad, 1983 (Andhra Pradesh) 277	Authority referenced among decisions on appeals against money decrees and stay practice.	The Court recorded the reference but found that the decisions relied upon by the appellant were not necessarily on all fours with the facts before it and therefore were not controlling.
Union of India v. Jagannath Radhey Shyam, AIR 1979 Delhi 36	Interpreted sub-rule (3) of Rule 1 of Order 41 CPC; holding that deposit of decretal amount is not a condition precedent to the maintainability of the appeal.	The Court relied on the reasoning that deposit/security affects the grant of stay but does not render an appeal incompetent; applied to reject the submission that non-deposit made the appeal invalid.
Goodyear India Ltd. v. State of Haryana, (1990) 2 SCC 71 : AIR 1990 SC 781	Principle that precedent is authority only for what it actually decides, not for remote or inferred propositions.	The Court invoked this to refuse to follow earlier High Court orders mechanically where there was no parity of facts and to emphasise that only the ratio decidendi binds.
Union of India v. Annam Ramalingam, (1985) 2 SCC 443 : AIR 1985 SC 1013	Reiterated the limitation of applying reasoning of one decision where there is no parity of situation/circumstances.	Applied to underscore that decisions relied upon by the appellant could not be followed where factual matrix differed; judicial discipline requires caution in extending precedents.
Kisan Rice Mills, Tanda v. Bank of India, (1980) 22 UPLBEC 858	Referenced among authorities concerning stay and deposit issues.	Listed among cases; the Bench noted these decisions had not been considered in certain earlier orders relied on by the appellant and therefore were not necessarily binding here.
State v. Roshan Lal (referred in discussion of Tata Chemicals)	Considered the requirement to deposit decretal amount; held certain consequences if the amount was not deposited per a Single Judge's view.	The Court noted the decision and discussed its relevance in the context of earlier orders that had allowed partial deposit; however, the present Court did not find such orders binding without parity of facts.

Court's Reasoning and Analysis

The Court's analysis proceeded in a stepwise fashion, applying statute, principle and precedent strictly to the facts before it:

The Court first set out the statutory framework: Order XLI Rule 5 CPC (as amended by the Allahabad amendment to sub-rule (5)). It observed the rule confers discretionary jurisdiction on the Appellate Court to stay execution of a decree for "sufficient cause", and reiterated the statutory criteria in sub-rule (3): (a) that substantial loss may result to the applicant unless stay ordered; (b) that the application has been made without unreasonable delay; and (c) that security has been given for due performance.
The Court applied the Privy Council dictum (Nawab Sidhee Nuzur Ally Khan) that an application for stay must show (i) serious injury will result without the stay and (ii) the applicant must come promptly. The Court found the appellant delayed substantially — the appeal was filed on 13-10-1993 but the stay application was filed on 26-9-1995 — and this delay weighed strongly against granting a stay.
The Bench considered the line of authorities dealing with stays of money decrees (including Mehta Teja Singh and Central Bank of India). It took from those decisions the guiding principle that, where appropriate, the court may require deposit of the decretal amount or impose terms safeguarding the interests of the judgment-debtor (for example redeposit with interest if the decree is reversed), rather than granting an unconditional stay.
Applying injunction principles (as drawn from Mool Raj and Hazrat Surat Shah), the Court asked whether the appellant had shown prima facie case, balance of convenience and irreparable injury. It found these ingredients lacking:
- The appellant did not allege respondents lacked assets or would be unable to comply with restitution if the appeal succeeded; on the contrary the respondents' addresses were known and they had appeared in the trial court.
- The appellant admitted it had no funds and had delayed in paying court fees; execution proceedings had led to attachment of appellant's accounts, reflecting its own inaction.
- The balance of convenience favoured the respondents: the Court observed the Rupee's depreciation and that respondents could make profitable use of the decretal amount; there was no clear risk of irretrievable loss to respondents if withdrawable sums were allowed.
The Court reviewed the authorities and earlier High Court orders relied upon by the appellant (including an order in E.A. No. 849 of 1993). It emphasised the doctrine that only the ratio decidendi of prior decisions binds and that precedent must be applied only where there is parity of facts. The Court did not consider the orders placed before it to be binding precedents that required identical treatment in the present case.
Given the statutory criteria, the delay, the appellant's lack of funds, its prior conduct (delay in payment of court fee, attachment of accounts) and absence of convincing evidence of irreparable injury, the Court concluded there were not "sufficient reasons" to exercise its discretion in favour of granting a stay under Order XLI Rule 5 CPC.
The Court therefore rejected the stay application but furnished practical directions: the appellant was given liberty to approach the executing court at the time respondents sought to withdraw the decretal amount and to request that withdrawal be permitted only after respondents furnish sufficient security. Separately, the Court admitted the appeal, issued notice to respondents to be served within two weeks and directed filing of paper books and requisite steps, warning that failure to comply could lead to dismissal of the appeal.

Holding and Implications

Holding:

The stay application under Order XLI Rule 5 CPC is rejected.

Implications and immediate consequences:

The rejection of the stay means the respondents remain entitled to the usufructs of their decree and, subject to execution law and practice, may proceed to realise the decretal amount unless restrained by an executing court on appropriate terms.
The Court expressly left open the procedural remedy for the appellant to approach the Executing Court when respondents move to withdraw the decretal amount and to seek conditions (security) to protect its interests; such a prayer by the appellant will be considered objectively by the executing court.
The appeal has been admitted for hearing by the Appellate Court under Order XLI Rule 11 CPC; the appellant must serve notices, file requisites and paper books within prescribed time, failing which the appeal may be dismissed.
On the question of precedent, the Court did not lay down any novel principle; it applied established authorities and emphasised that existing precedents bind only to the extent of their ratio and where factual parity exists. The decision primarily applies established principles to the facts and does not purport to create a new binding rule beyond those principles.

Disposition in the opinion: "Petition dismissed." The appeal itself was admitted and procedural steps were ordered.

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New Okhla Industrial Development Authority v. Mahendra Singh And Others

1. This order disposes of appellant's application under ‘Order 41 Rule 5 of the Code of Civil Procedure’ (hereinafter referred to as the Code), filed on 6-9-1995, by which prayer has been made to stay execution of the judgment and award dated 6-4-93 passed by the District Judge, Ghaziabad in L.A.R No. 58 of 1991 during pendency of this appeal.

2. For the purposes of development of the industrial town of NOIDA the relevant notification seeking acquisition of about three acres of lands of the Respondent Nos. 1 to 3 was made on 8-8-88 the possession of which was also taken by the State of U.P on 4-10-1989. The S.L.A.O awarded compensation of the acquired lands at the rate of Rs. 31.50 per sq. yard. Respondents 1 to 3, however, claimed compensation at the rate of Rs. 250/- per sq. yard. Both sides adduced evidence. By the impugned judgment and award compensation was awarded at the rate of Rs. 93.75 per sq. yard which is under challenge in this appeal.

3. The appellant in its application has come up with an allegation that the enhancement is absolutely arbitrary and illegal and necessary ingredients which are required to be taken into consideration for determining the compensation were failed to be considered and thus the judgment is in teeth of Sections 23 and 4 of the Land Acquisition Act; that the appellant has no funds to meet with the arbitrary and huge financial liability; that in the ……………………………. execution proceedings the accounts of the appellant have been attached resulting in serious difficulties in its day-to-day functioning as also carrying on other developmental projects undertaken by the appellant in public interest; and it would be in the interest of justice that pending disposal of this appeal execution of the judgment and decree may remain stayed so that justice be done between the parties.

4. In the affidavit, sworn by the Assistant Law Officer of the appellant accompanying this application, it has been stated, inter alia, to the following effect:— (i) huge additional financial liability was imposed, and no funds were allocated for the said purpose (ii) The appeal was filed by paying a court fee of Rs. 5/- as huge amount of court fee was to be paid first, even for which no funds were available; (iii) The attachment of the accounts of the appellant was erroneously made by the District Judge; (iv) There will be imminent danger in realisation of the amount in execution, and in case it is done, the appellant will suffer an irreparable injury and loss as it will not be able to realise the amount from the persons whose locations and whereabouts are not ascertainable; (v) It has no separate funds to bear the additional financial burden imposed by the impugned judgment and order of enhancement of compensation and (vi) In somewhat-similar facts and circumstances this, Court has been pleased to grant full order of stay of execution of thejudgment enhancing the compensation in First Appeal No. 849 of 1993, UPSIDC v. Tek Ram.

5. In support of the prayer Mr. Mishra, the learned counsel for the appellant contended as follows (i) This appeal contains very good grounds and there is every likelihood of setting aside of the impugned judgment and award and against the same judgment appeals have been preferred before this Court which have already been admitted in which similar prayers have already been allowed. Accordingly, following the doctrine of precedent we should pass similar orders staying execution of the impugned judgment and award (ii) Alternatively, interim order be passed by directing the appellants to deposit the enhanced amount in appeal within a reasonable time, to be fixed by us, as contemplated in sub-rule (5) as amended by Allahabad of Order XLI Rule 5 of the Code which should not be allowed to be withdrawn by Respondent Nos. 1 to 3 as there is every chance that alter the withdrawal of the decretal amount they may not be traced at all. The appellants are prepared to file paper books so that the hearing of the appeal be expedited. To support his contentions Mr. Mishra placed considerable reliance on the provisions of Order XLI Rule 5(1), (3), (4) & (5) of the Code of Civil Procedure, apart from placing reliance on following decisions; (i) Prabhakar…Applicant; v. Vinayakrao…Non-Applicant., AIR 1983 Bom 301; (ii) Miss. Nirmala Chaudhary v. Bisheshar Lal, AIR 1979 Del 26; (iii) J. Laxmi Kantham v. Uppala Rajamma, AIR 1982 AP 337; (iv) State of Andhra Pradesh v. Mahmud Hasan Khan Mahraj Kumar of Mahmoodabad, AIR 1983 AP 2277; (v) Tata Chemicals Ltd. v. Sadhu Singh, 1994 (2) All WC 982 and (vi) Kisan Rice Mills, Tanda v. Bank of India, (1980) 2 UPLBEC 858.

6. Order XLI Rule 5 of the Code of Civil Procedure, as it stands after Allahabad Amendment of sub-rule (5), reads thus:—

“5. Stay by Appellate Court—(1) 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.

(Explanation — 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 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) () Stay by Court which passed the decree — where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied.

(a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) that the application has been made without unreasonable delay; and

(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

(4) Subject to the provisions of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.

(5) Notwithstanding anything contained in the foregoing sub-rules where the appeal is against a decree for payment of money, the Appellate Court shall not make an order staying the execution of the decree, unless 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 Appellate Court may think fit.”

(Emphasis supplied)

7. A bare perusal of the aforementioned provisions show that a discretionary jurisdiction has been conferred on this court and stay may be granted if ‘sufficient cause’ is made out and the party invoking them satisfies the court that it will sustain ‘substantial loss.’ Further riders have also been provided by the Allahabad amendment of sub-rule (5).

8. More than 13 years ago the Privy Council in Nawab Sidhee Nuzur Ally Khan v. Oojoodhyaram Khan (Ragah) (10) Moor Ind App 3222 has considered somewhat similar provisions then existing, and has observed thus:—

“any application for a stay of proceedings must be founded upon two points, which are essential to sustain the application; first, that a serious injury will be the result to the party applying unless the stay of proceedings is granted and secondly, that the party has come promptly to make the application………” Even though this appeal was filed on 13-10-1993 this stay application was filed on 26-9-1995 and pressed yesterday.

9. When one of the High Courts of our country granted stay of money decree by asking the judgment debtor to deposit only part of the decretal amount” the order granting stay was challenged before the Apex Court. Nullifying that order the Apex Court, in Mehta Teja Singh & Co. v. Grindlays Bank Ltd. (1982) 3 SCC 199 (sic), through-three Judges Division Bench observed thus:—

“It is true that the appeal is directed against an order passed by the High Court, which is of an interlocutory nature. We, however, find it some what difficult to appreciate that the High Court should have granted stay of a money decree.

(Emphasis supplied)

10. After making the aforesaid observations the Apex Court directed the Bank to deposit the decretal amount within 4 weeks in the High Court with liberty to the appellant to withdraw the decretal amount on furnishing Bank Guarantee.

11. Mr. Mishra made, endeavours to distinguish this decision/order of the Supreme Court but we do not find any merit in his attempt. We are of the view that really this was the course suggested to by the Apex Court which the High Court was required to follow.

12. In Central Bank of India v. State of Gujarat, (1987) 4 SCC 407 : AIR 1987 SC 23220 a two Judges Division Bench of the Apex Court, when the Bank obtained a money decree against the State; which went up in First Appeal and moved an application for stay of execution of operation of the decree, after considering the provisions of Order XLI Rule 5 of the Code of Civil Procedure directed payment of amount to the decree holder subject to the condition that in the event of the decree of trial court being reversed the Bank would redeposit the amount in the executing court within 2 weeks of the date of reversal alongwith 18 percent interest on the amount from the date the money is withdrawn till the date of deposit, observing thus:—

“………the High Court could in its discretion either direct payment of the amount to the decree-holder subject to terms safeguarding the interest of the judgment-debtor in the eventuality of reversal of the decree or direct the amount to be deposited or invested on terms of interest so that on the disposal of the First Appeal appropriate directions could be given.”

13. This was also done as a guideline to be followed by the Court in Appeals arising out of money decrees.

14. In Mool Raj v. Murti Raghunathji, AIR 1967 SC 1386 it was laid down by the Apex Court that “In effect a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction-is generally issued to a party and it is forbidden from doing certain acts.” In this context it is also relevant to remember what was held by the Apex Court vide Hazrat Surat Shah Urdu Educations Society v. Abdul Saheb, 1988 (5) Serv LR 768 : (1988) 4 JT (SC) 2232 that “No temporary injunction should be issued unless the three ingredients are made out namely, (i) prima facie case, (ii) balance of convenience, (iii) irreparable injury which could not be compensated in terms of money. If a party fails to make out any of the three ingredients he would not be entitled to the injunction and the Court will be justified in declining to issue injunction.” Thus, the real question is whether we should restrain Respondent Nos. 1 to 3 from utilising the usufructs of his money decree?

15. It is true that the appellant has come up with a claim that it will suffer irreparable loss and injury and will not be able to realise the amount from the persons whose locations and whereabouts are not ascertainable. It is not the specific case of the appellant that the Respondent do not own and possess sufficient property and in the event of the appeal being allowed by this Court the Respondents will be not in a position to comply with the order of restitution. The allegations in regard to locations and whereabouts of Respondents 1 to 3 is somewhat surprising and baffling to us. The appellant has described Respondents 1 to 3 by giving their specific address mentioned in the memorandum of appeal. The decree also gives their address. The Respondents 1 to 3 had filed their claim after their appearance in the Court below. Thus, their address and locations are well known to the appellant. We, thus do not find any merit in the allegations of the appellant.

16. These apart, on its own case there is no fund available with the appellant. Further the appellant took considerable time to manage the required court fee in absence of funds and its deposit. To crown all by its own inaction it has adopted such a conduct that its account has been attached by the executing court. It is not understandable thus, how it can be said that the balance of convenience is in favour of the appellant against whom the decree stands. The Respondents are entitled to usufructs of their decree. Thus on the contrary, we find that the balance of convenience is in favour of the Respondents as the Rupee is loosing its value and they can more profitably use the decretal amount. Further the appellant will either lease/settle/or sale the lands in question at a higher price than the compensation amount and thus there is no question of any substantial loss to it.

17. Now we come to the decisions relied upon by Sri Mishra. Paragraphs 5 and 6 of Tata Chemicals Ltd. v. Sadhu Singh, 1994 All WC 983 runs as follows:—

“5. Before entering into the merits of the appeal, some preliminary points raised by Sri J.C Bhardwaj learned counsel for the Respondents may be disposed of Along with the appeal, a stay application was filed by the appellant in which an interim order was passed on 21-10-1989 staying the execution of the award on the condition that the appellant should deposit half of the enhanced amount. By the order dated 5-4-1994 the respondents were permitted to withdraw the amount so deposited without furnishing security. Learned counsel has submitted that the appellant has not complied with the terms of the stay order and further that as the award of the learned Addl. District Judge is in the nature of a money-decree, the appeal was not competent and could not be heard on merits unless the appellant deposited the amount disputed in the appeal in view of Order 41 Rule 1(3) CPC. In support of his submission reliance was placed upon State v. Roshan Lal, 1992 AWC 412, wherein a learned Single Judge has held that in an appeal preferred against the money decree the entire decretal amount had to be deposited by the appellant and if the entire amount was not so deposited, the interim stay-order would stand automatically vacated and the stay application would stand rejected. It may be noticed here that against the order dated 25-4-1991 by which the stay order had been modified, the appellant preferred Civil Appeal Nos. 3758 to 3796 of 1991 in the Supreme Court passed the following order:

“The execution of the impugned award shall remain stayed subject to the condition that the appellant deposits half of the enhanced amount awarded by the 1st Addl. District Judge, Badaun within a period of two months from today, on such deposit, the Respondents-claimants are permitted to withdraw half of the amount so deposited without furnishing any security and the balance on furnishing proper security to the satisfaction of the said I Addl. District Judge, Badaun.

The order quoted above would show that the Supreme Court has stayed the execution of the award on the condition that the appellant deposits half of the enhanced amount. Therefore, there was no question of the appellant being required to deposit the entire amount awarded by the Addl. District Judge. In case the condition imposed in the stay order dated 23-9-1991 had not been complied with, it was open to the claimant-respondents to execute the award but that would not render the appeal incompetent nor would debar appeal on merits.

6. Regarding the second condition of the learned counsel for the respondents that as the appellant has not deposited the amount disputed in appeal, the same was incompetent and could not be heard in view of Order 44 Rule 1(3) CPC, in my opinion the said provision has relevance at the state when the court is making an order staying the execution of the decree and it has no bearing at all on the competency of the appeal, itself. In Union of India v. Jagannath Radhey Shyam, AIR 1979 Delhi 36 Yogeshwar Dayal, J. (as his Lordship then was) has considered the true scope of sub-rule (3) of Rule 1 of Order 41 of the Code of Civil Procedure. After referring to the Code of Civil Procedure (Amendment) Bill, 1974 and the report of the Joint-Committee it was held that the intention of the Parliament was not to make the deposit of the decretal amount or the furnishing of the security before filing of appeal against money decree as condition precedent for valid representation of the appeal. It was further ruled that reading sub-rule (3) of Rule 1 of Order 41 alongwith sub-rule (5) of Rule 5 all that can be said is that so long as the decretal amount is not deposited or security is not furnished the Court may not make an order staying the execution of the decree. The same view has been taken in Prabhakar v. Vinayak Rao, AIR 1983 Bom 301, I am, therefore, clearly of the opinion that the deposit of the amount disputed in the appeal is not a condition precedent for the maintainability of the appeal and the appeal cannot be held to be incompetent.”

18. No doubt we find reference of an order passed by the Apex Court in Civil Appeal No. 3758 of 3796 of 1991 staying execution of award on certain terms and conditions but we are not aware in what special backdrop the said order was passed. There is no ratio to be followed up by us. It appears that the order was passed under Article 42 of the Constitution at the time of hearing of the appeal. Further a question arose about the maintainability of appeal on account of non-deposit of the entire compensation amount. In State of Andhra Pradesh v. Mahmud Hasan Khan Maharaj Kumar of Mahamoodabad 1983 Andhra Pradesh 277; Union of India v. Jagannath Radhey Shyam, AIR 1979 Delhi 36, Prabhakar…Applicant; v. Vinayakrao…Non-Applicant., AIR 1983 Bombay 301, J. Laxmikanttham v. Upalia Rajamma, AIR 1982 AP 337 and Kisan Rice Mills, Tanda v. Bank of India, (1980) 22 UPLBEC 858 decided by a learned Single Judge of our court none of the decisions referred to by us have been considered which are also not binding on us.

19. Now we come to the order dated 13-7-1994 passed in E.A No. 849 of 1983, which was strongly relied upon by Mr. Mishra and is required to be followed by us. This order reads thus:—

“Heard learned Standing Counsel, Shri Shitla Prasad, learned counsel for U.P State Industrial Development Corporation Ltd. and Shri Vino Sinha for the claimant. It is true that some of the appeals are barred by limitation for which petitions under section 5 of the Limitation Act have been filed. It is brought to our notice by Shri Shitla Prasad that there are 132 appeals arising out of the same notification u/s (1) of the Act. After hearing for some time we find that the question involved to be decided in the appeal is very shot and the appeal can be disposed of finally subject to disposal of the petitioner for limitation on their own merits. In these circumstances when we requested Shri Shitla Prasad that he would be essentially interested in the disposal of the appeals, and therefore, he should furnish paper book in one appeal including all documents those have been referred to and those documents which would be relevant for the purpose of the disposal of the appeals. He accepted our proposal and agreed that granted two weeks time he will be able to furnish paper book. In view of this acceptance of Shri Shitla Prasad all parties agreed that the record of the lower court need not be called for. In case, there would be any mistake in the paper book learned counsel shall get it corrected in this court itself.

List all 132 appeals (which list shall be supplied by Shri Shitla Prasad to the Bench Secretary) in the month of August, 1994 after the paper book is filed and supplied to the learned Standing Counsel and Shri Vinod Sinha learned counsel for the claimants. In some appeals other counsel entered appearance. Shri Shitla Prasad agrees that the paper book shall be supplied to them also. In view of the fact that we are going to dispose 132 appeals within one month, interim stay of execution of the award till 20-3-1994.

Certified copy of the order, if applied for, may be furnished within two days to the learned counsel for the parties.”

20. A perusal of this order shows that stay was granted even if some appeals were barred by limitation in view of the fact that the appeal was to be disposed of within 1 month. We have not been made aware that this order was passed on the same facts and circumstances as stated by us. A bare perusal of this order, as also of one more order shown to us, shows that the provisions and the decisions referred to by us were also not considered. This apart it is only the ratio decidend which is binding on us. As laid down by the Apex Court in Goodyear India, Ltd. v. State of Haryana, (1990) 2 SCC 71 : AIR 1990 SC 781 precedent is an authority only for it actually decides and not for what may remotely or logically flow from it. In Union of India v. Annam Ramalingam, (1985) 2 SCC 443 : AIR 1985 SC 1013) it was also laid down that in absence parity of situation and circumstances reasoning of one decision cannot be affected on another. Judicial discipline forbears us in stating beyond what we have already stated.

21. For the reasons aforementioned we do not find sufficient reasons to exercise our discretion in favour of the appellant. This stay application is accordingly rejected.

22. However, it will be open for the appellant to move the Executing Court itself at the time when the Respondents 1 to 3 proceed to withdraw the compensation amount awarded by the decree under appeal and a request to permit withdrawal after having sufficient security from Respondents 1 to 3, and if such a prayer is made by the appellant, the same shall be considered objectively.

23. Even though only stay petition has been listed before us since we are vested with jurisdiction to hear appeals for hearing under Order XLI Rule 11 of the Code by the Hon'ble Chief Justice and being satisfied that this appeal raises triable issues, we admit this appeal. Issue notice by registered post as well as ordinary mode to Respondents 1 to 3, for which necessary requisites etc. must be filed within two weeks from today, failing which this appeal shall stand dismissed without further reference to a Bench.

24. Liberty is granted to the appellant to move the Hon'ble Chief Justice for an early hearing after notices are served and paper books are filed by the appellant.

25. Petition dismissed.

New Okhla Industrial Development Authority v. Mahendra Singh And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

New Okhla Industrial Development Authority v. Mahendra Singh And Others

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