Ajay Jain vs Mukesh Jain
2023 Latest Caselaw 20428 MP

Madhya Pradesh High Court

Ajay Jain vs Mukesh Jain on 4 December, 2023

                                                              1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT INDORE
                                                       FA No. 1771 of 2023
                                                       (AJAY JAIN Vs MUKESH JAIN)

                          Dated : 04-12-2023
                                Shri, Raghvendra Singh Raghuvanshi, learned counsel for the

                          appellant.
                                Shri Chinmay Mehta, learned counsel for the Respondent.

Heard on the question of admission.

Perused the record of trial Court and the impugned judgment and decree

dated 26.06.2023 and memo of appeal.

This appeal is arguable hence admitted for hearing. Also, heard on I.A. No.6261/2023.

The appellant/defendant of civil suit No.RCSB No.2200007/2016 before

the 4th District Judge, Indore has preferred this application under Order 41 Rule 5 read with Section 151 of the CPC, 1908 for stay of execution of impugned judgment and decree.

As per the application, the appellant has strong prima facie case in his favour and has strong hope to succeed in the case in matter otherwise, he will

suffer irreparable loss if the impugned judgement and the decree is not stayed. Final hearing of the appeal will take considerable long time.

The respondent/Plaintiff has opposed the aforesaid prayer by mentioning the Order 41 Rule 1 (3) of the C.P.C. and argued that the appellate court may only allow time to deposit the amount disputed in the appeal. He referred to the judgment passed in case of Sihora Nagar Palikar Bureau Vs. Bhabhlubhai Virabhai & Co.[(2005) 4 SCC].

Counsel for the appellant has relied on the judgment passed in M/s. Malwa Strip Pvt. Ltd. Vs. Ms. Jyoti Ltd. reported in AIR SC 1581.

The principle of stay to execution of decree laid down in case of Sihora Nagar Palikar Bureau (SUPRA) is reproduced below:-

6. An explanation was also added to sub-rule (1) of Rule 5 of Order XLI. In terms of sub-rule (1) of Rule 5 of Order XLI, an appeal shall not operate as a stay of proceedings. It is for the Appellate Court who may, for sufficient cause, order stay of execution of such decree. The explanation appended to the said sub-rule reads as under:-

"Explanation:- An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance."

Considering the averments of both the parties and the material available on record, upon depositing 50% of the decretal amount within a period of two months from today, the execution of rest amount shall be stayed till the final disposal of the appeal. The amount so deposited be kept in FDR and shall be withdrawn by the party entitled to receive as per the outcome of the appeal.

Accordingly I.A. No6261/2023 is disposed of. I.A. No.9279/2023, which is an application under Order 41 Rule 27 of the C.P.C. shall be taken into consideration at the time of final hearing of the appeal on merits.

List the matter for final hearing in due course. Certified copy as per rules.

(GAJENDRA SINGH) JUDGE

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