Shashi Bhushan Lal Das vs Depak Rathore & Anr.
2014 Latest Caselaw 6740 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No. 1085/2014

%                                                   12th December, 2014

SHASHI BHUSHAN LAL DAS                                     ..... Petitioner
                 Through:                Mr. T S Ahuja, Mr. Varun Ahuja and
                                         Mr. Braj Bhushan, Advs.


                          VERSUS



DEPAK RATHORE & ANR.                                         ..... Respondents
                 Through


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?        Yes


VALMIKI J. MEHTA, J (ORAL)



CM No. 20371/2014 (exemption)

      Exemption is allowed subject to all just exceptions.

      The application is disposed of.

CM(M) No.1085/2014 & CM No. 20370/2014 (stay)

1.           By this petition the petitioner, who is the appellant in the first

appeal, impugns the orders dated 13.10.2014 and 19.11.2014 by which the
CMM 1085/2014                                                        Page 1 of 3
 first appellate court while issuing notice has directed deposit of the decretal

amount in Court.

2.           No notice is required to be issued in this petition because even

in the appeal notices have not yet been issued and the impugned order has

been passed at the ex parte stage.

3.           There is no provision in the Code of Civil Procedure, 1908

(CPC), including in Order XLI CPC, whereby for consideration of appeals

against judgments passing money decrees, decretal amount has to be

deposited. It is only pursuant to Order XLI Rule 5 CPC when an appellant

in the first appeal seeks interim orders to stay execution of the money decree

then direction can be issued for deposit of the decretal amount. There is no

statutory provision which provides deposit of the decretal amount as a

condition precedent for hearing of the appeal. This is not provided even

under Order XLI Rules 6 and 10 CPC, and which provisions have been

relied upon by the appellate court.

4.           In view of the above the present petition is allowed and the

impugned order is set aside.          It is made clear that in case the

petitioner/appellant in the first appeal, applies for interim orders seeking stay

of execution of the impugned judgment and decree passed by the trial court

or any other interim orders, the first appellate court at that stage will be
CMM 1085/2014                                                        Page 2 of 3
 entitled to pass appropriate orders in accordance with law for deposit of the

decretal amount or security etc etc.

5.           Petition is allowed and disposed of in the above terms.




DECEMBER 12, 2014                              VALMIKI J. MEHTA, J.

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