Merchants Bank Ltd. and Another vs Dharmasamvardhani Ammal

Anantanarayanan, J.—This appeal is preferred from the judgment of Ramachandra Iyer J. : (as he then was) in C. M. P. No. 3788 of 1960

in A. S. No. 144 of 1960 pending in this court, It is sufficient for us to observe that the proceeding before the learned Judge was by the appellant

bank, for an interim order of stay pending the appeal, with regard to the decree obtained by the respondent (widow of the deceased employee of

the bank) embodying the liability of the bank to pay certain provident fund amounts to the credit of that employee. Briefly stated, the bank claimed

that the deceased employee was guilty of malversation of the funds of the institution to a far greater extent than the claim and that, therefore, the

widow could not obtain such a decree, or at least that she should not be permitted to enforce the decree and take away the monies pending the

appeal by the bank against the decree in the widow''s suit.

The learned Judge (Ramachandra Iyer J.:) briefly referred to the circumstances and observed that the grant of an order of stay, upon the facts of

the case

will be tantamount to granting practically an attachment before judgment of the moneys due to the respondent under the decree or to set off an

anticipated cross decree"".

For this reason, the petition was dismissed.

The learned counsel for the appellant bank contends before us that the principle of Order 21 Rule 29 of the CPC may apply t o the present

facts, though ha concedes that that rule is not in terms applicable. We do not see how the rule, or the principle of that rule, can apply to the present

situation, it is perfectly true that the bank instituted what would be in the nature of a cross-claim against the estate of the deceased employee, for

the alleged malversation, but that suit has been admittedly dismissed, and the further proceedings do not now concern us. When the matter came

up as an interim proceeding pending the Letters Patent Appeal before the learned Chief Justice (Ramachandra Iyer C. J.) and Jagadisan J. the

Bench passed an order to the effect that there would be an interim stay of the present decree on condition that the bank should deposit moneys or

furnish security for the decretal amount to the satisfaction of the learned Subordinate Judge of Tanjore, and make regular payments of interest to

the respondent. We consider that, upon the face of the present situation, this would be an eminently reasonable and equitable order which should

be made absolute pending disposal of the first appeal by the bank. Though the principle of Order 21, Rule 29 of the CPC does not apply here, the

fact remains that the widow of the deceased employee has obtained a decree for substantial moneys, which decree is under appeal, and it is at

least not very clear that she could be permitted with safety to take away these moneys, pending the result of the appeal. We put it to the learned

counsel for the respondent whether he could furnish adequate security if the decree is to be enforced as it stands. We are not quite satisfied that the

widow of the deceased employee would really be in a position to do this. Hence, we feel that the interim order in C. M. P. No. 8163 and 8715 of

1960 made by the Bench would be the most convenient and equitable arrangement and one which will conserve the interests of both parties. We

dispose of this Letters Patent Appeal, by making an absolute order in those terms pending the appeal.

It is alleged by the learned counsel for the respondent that, even with regard to that order, there are arrears of interest. These arrears of interest

must be promptly paid by the appellant bank within one month from this date, on intimation by the respondent of the amount due, failing which the

decree will become executable forthwith. With regard to the Government promissory notes, now in deposit, we direct that the bank should take

steps to have them transferred in the name of the court. The parties will bear their own costs.