J&K Cooperative Housing Corpn. ... vs Housing And Urban Dev. Corpon. Ltd
2022 Latest Caselaw 1478 j&K

                                                                     Sr.No. 27



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                CFA No. 40/2013
                                                IA No. 62/2013


J&K Cooperative Housing Corpn. Ltd.                              ....Petitioner(s)

               Through:-       Mr. Khalid Mustafa Bhatti, Advocate



V/s

Housing and Urban Dev. Corpon. Ltd.                            ....Respondent(s)
and another
               Through :-      Mr. U. K. Jalali, Sr. Advocate with
                               Mr. A. G. Sheikh, Advocate


Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
                                    ORDER

20.10.2022

This is a civil first appeal under section 96 of the Code of Civil

Procedure, Svt. 1977 against the judgment and decree dated 23.10.2013 passed

in a civil suit for recovery of Rs. 679210305/- along with interest passed in

favour of the respondents herein against the appellant by the Court of learned

Additional District Judge, Jammu. This civil first appeal came to be filed on

06.11.2013 wherein this Court in terms of an order dated 08.11.2013 came to put

the respondents on notice and on behalf of respondent no. 1 the appearance was

caused on the same very day.

Since the decree in appeal is a money decree as such this Court in

terms of an order dated 26.07.2016 had registered the objection of the

respondents about the maintainability of the appeal without the requisite

money/security deposit as envisaged in the Order 41 Rule 1(3) of the Code of

Civil Procedure Svt. 1977 to the appellant's counsel who had sought time for

making submission in this regard. Ever since then, this appeal is gathering

adjournments, the beneficiary of which is none else than the appellant enjoying

purported stay of execution of decree as direction till next date only vide order

dated 08.11.2013.

In view of the fact that the operation of Order 41 Rule 1(3) of the CPC

is getting attracted, the same reads as under:

"3.Where the appeal is against 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 case may deem fit".

The mandate of Order 41 Rule 1(3) is not meant for the appellant to

address arguments upon what is for the appellate court to insist as such this

Court in exercise of its appellate jurisdiction directs the appellant to deposit the

entire decretal amount before this Court within a period of one month failing

which the civil first appeal shall bear the risk of dismissal on the next date of

hearing before the Bench.

List this case on 24.11.2022.

,,

,

(Rahul Bharti) Judge Jammu:

20.10.2022 Meenakshi ,