Commissioner-Cum-Secretary (Power) and Others vs Shaman Enterprise

B.K. Sharma, J.—Heard Mr. P.K. Tiwari, learned Counsel for the Appellant/applicants as well as Mr. Dutta, learned Counsel for the opposite party/Plaintiff

By this application, the applicants have prayed for stay of execution of the judgment and decree dated 03.08.09 passed by the Deputy Commissioner/District Judge, Khonsa, Tirap in Money Suit No. 4/2008. While Mr. Tiwari, learned Counsel for the applicants/Appellants has prayed for stay of the aforesaid judgment and decree, Mr. Dutta, learned Counsel for the opposite party/Plaintiff submits that the decretal amount is required to be deposited in the Court with the liberty to the Respondent/Plaintiff to withdraw at least a part of the said amount. Mr. Dutta has referred to the decision of the Apex Court reported in Malwa Strips Pvt. Ltd. Vs. Jyoti Ltd.,

On the other hand, Mr. Tiwari, learned Counsel for the applicants has referred to the decision of Gujarat High Court reported in State of Gujarat Vs. Central Bank of India and Others,

In the case of Malwa Strips (supra), the Apex Court while observing that the appellate Court, indisputably, has the direction to direct deposit of such amount, as it may think fit, and unless such deposit is made, the decree should not be normally stayed. The Apex Court has also observed that although the particular provision is not mandatory, but the purpose for which such provision has been inserted, should be taken into consideration. However, at the same time it has also been observed that in exceptional case, stay of execution of money decree may be granted.

Under Order 27, Rule 8A, no security to be required from the Government or a public officer in certain cases. In the case of Gujarat (supra), the High Court observed that absolute stay can be granted in case of money decree when the State is involved. It will be pertinent to mention here that in Malwa Strips (supra), State was not involved as the Appellant. In the State of Kerala Vs. Kuruvilla, it has been observed that the Court cannot order to deposit the amount when the State is the Appellant in so far as the Order 27, Rule 8A provides that the Govt, cannot be compelled to give security. In the said decision, the opinion expressed is that Order 41, Rule 5(3) and Order 27, Rule 8A have to be read harmoniously.

For all the aforesaid reasons and having considered the matter in its entirety, we are of the considered opinion that the applicants/Appellants are entitled to stay of the impugned judgment and decree and it is ordered accordingly.