S.K Ray, C.J:— The question whether the appellant who is the Collector of Cuttack shall be required to furnish security for the due performance of the decree under appeal while granting stay of execution of the decree was mooted before the Registrar. Having regard to the importance of the question, he, by his order dated 7-5-80, placed the matter before the Bench for orders. This question was argued by the learned counsel for the parties on 14-5-1980. We reserved passing of final order in the matter. We now proceed to deal with the question.
2. This appeal is directed against the decree passed in L.A Misc. Case No. 12 of 1975 which had been registered on a reference being made by the Land Acquisition Collector (here, after referred to as Collector) under section 18 of the L, and Acquisition Act for determination of the market value of the acquired land.
3. The Subordinate Judge who disposed of the case determined the market value to be Rs. 31,625.00. The Collector had determined the value to be Rs. 3,968.85 and that amount had been received by the claimant under protest. The amount disputed in this appeal is, therefore, Rs. 27,656.15.
4. The respondent decree-holder filed Execution Case No. 256 of 1978 for realisation of the decretal amount. The appellant, therefore, filed an application under Order 41, rule 5, Civil Procedure Code for stay of further proceedings of the execution case. It gave rise to the aforesaid question as to whether the appellant shall be called upon to furnish security as a condition of grant of stay.
5. The learned counsel for the appellant relies on rule 8A of Order 27, Civil Procedure Code for the proposition that no security shall be required from the Government as a condition of grant of stay under rule 5 of Order 41, Civil Procedure Code. The learned counsel for the respondent resists this contention relying upon Sub-rule (3) of rule 1 of Order 41. It was further contended that reading Sub-rule (3) of rule 1 with sub-rule (3) of rule 5 of Order 41 it is clear that the appellant, be he the State or a private patty, is bound to furnish security for the due performance of the decree as may ultimately be binding upon him.
6. It is not disputed that even though the Collector conominee is the appellant, he represents the State and, in essence, the State Government is the appellant. Therefore the relevant rules referring to State Government would be applicable to this case. It is proper to extract the relevant rules. Order 41, rule 1(3), Civil Procedure Code runs as follows:—
“Where the appeal is agaist 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.”
7. Rule 5 of Order 41, Civil Procedure Code so far as it is relevant, is extracted herein below:—
“(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 excution 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: …………
(2)……………
(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)……………
(b)……………
(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)……………
(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.
8. Rule 8 A of Order 27, Civil Procedure Code runs as follows:—
“No such security as is mentioned in rules 5 and 6 of XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.”
9. Before 1937, rule 8A of Order 27 was rule 7 of Order 41, Civil Procedure Code. This rule was omitted from Order 41 and introduced in Order 27 by the Government of India (Adaptation of Indian Laws) Order, 1937. Sub-rule (3) of rule 1 and Sub-rule (5) of rule 5 of Order 41 were tor the first time introduced by Civil Procedure Amendment Act, 1976. Before 1987 while granting stay of execution the Government was exempted from being required to furnish security. By omitting rule 7 of Order 41 and re-enacting rule 8A of Order 27, it did not, in our opinion, change the position in regard to exempting the State Government from furnishing security as a condition of grant of stay. Introduction of Sub-rule (3) of rule 1 and Sub-rule (5) of rule 5 of Order 41 has not, in our opinion, affected the privilege of exemption from furnishing security so far enjoyed by the Government. Sub-rule (3) of rule 1 for the first time, by the Amendment of 1976, imposed an obligation on the appellant who is appealing from a decree for payment of money, either to deposit the amount in dispute in appeal or to furnish such security in respect thereof as the Court may direct. By introducing Sub-rule (5) of rule 5 of Order 41, the Legislature purported to reiterate the position that where the appeal was against a decree for payment of money the appellant must deposit the amount in dispute in appeal or furnish security notwithstanding anything contained in sub-rules (1), (3) and (4) of rule 5. rule 8A of Order 27, however, provides an exception. It states that no such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government. Sub-rule (5) of rule 5 expressly mentions furnishing of security as specified in Sub-rule (3) of rule 1. So rule 5 mentions about security under sub-rule (3)(c) of rule 5. Therefore, even though security is required under Sub-rule (3) of rule 1 from the appellant, whoever he may be, that security having been mentioned in Sub-rule (5) of rule 5 cannot be required to be furnished by the Government by reason of rule 8A of Order 27, Civil Procedure Code. Order 27 is a chapter regarding suits by or against the Government or public officers in their official capacity. Order 41 deals with appeals from original decrees. Rule 8A has been taken out of Order 41 and reintroduced into Order 27. This transfer of the provision from one chapter to another was made not for any other purpose than collecting all the provisions regarding the Government under one chapter, whether in the Court of first instance or in the Court of appeal. The exemption which the Government enjoyed in the matter of furnishing security before the Amendment Act of 1976 has not been affected in any manner by introducing Sub-rule (3) of rule 1 or sub-rule (5) of rule 5. We are, therefore, of opinion that while granting stay in the execution case the appellant is not to be called upon for furnishing security for the due performance of the decree as may ultimately be binding upon him. The Security is generally required to be furnished where the appellant's solvency is doubtful and to secure the fruits of irrigation to the respondent in the events of his ultimate success. The solvency of the Government cannot ever be in doubt. It is in that view that rule 8A of Order 27 was first introduced as a part of Order 41 and has been retained as a part of Order 27 irrespective of amendment of rules 1 and 5 by the 1976 amendment as has been indicated above.
10. The registrar has not granted stay, but has referred the important question for decision. Now that decision has been given that the State Government shall not be required to furnish security while granting stay of execution under Order 41, rule 5, Civil Procedure Code, it is not necessary to remit the matter back to the Registrar for the only purpose of passing the formal order of stay. We, therefore, direct that the execution proceeding be stayed until the final disposal of this appeal.
K.B Panda, J.:— I agree.
11. Ordered accordingly