Partly allowed

A. Susheelamma, v. Margadarshi Chit Fund (P) Ltd.

Telangana HC13 Sept 2013CRP/3924/2013

Case brief

AI extract

What is this about?

The High Court in a revision petition set aside an order dismissing a stay application. The court directed a stay of execution of a decree subject to the deposit of half the decreetal amount within two months, on which the decree holder could withdraw the held money without security.

What did the court decide?

Stay of execution of decree in O.S.No.586 of 2009 conditioned upon deposit of half the decreetal amount within two months; decree holder may withdraw deposit without security upon default vacates stay

A. Susheelamma, Vs Margadarshi Chit Fund (P) Ltd. — Execution and Attachment | Telangana HC (2013)

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HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL REVISION PETITION No.3924 of 2013

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ORDER:

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Heard both sides.

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The revision is directed against the order of the Lower Appellate Court declining to grant stay of the decree pending A.S.No.86 of 2012 before the said Appellate Court. Defendant Nos.1 to 6 in O.S.No.586 of 2009 on the file of Additional Senior Civil Judge, Kurnool filed A.S.86 of 2012 before the Special Judge for Trial of Cases under S.Cs. and S.Ts. (POA) Act – cum- VI Additional District Judge, Kurnool. Along with the said appeal, they moved I.A.No.71 of 2012, under Order 41 Rule 5 CPC, seeking stay of execution of decree pending the appeal. The said application was opposed by the respondent – decree holder and the Court below, under the impugned order dated 05.06.2013, has dismissed the said application primarily on the ground that the attachment warrants were issued against the judgment debtors subject to Section 60 CPC in the Execution Proceedings. That order is questioned in this revision by the appellants – defendants.

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Under Order 41 Rule 5 CPC, the Lower Appellate Court has not stayed the decree when the substantive appeal is pending and, pending the appeal, the balance of convenience lies in favour of the petitioners in granting stay of execution of decree subject, however, to certain conditions. The said power is either absolute or conditional. If stay is not granted in the appeal, the appeal itself would become infructuous. Hence, in my view, the impugned order is liable to be set aside as the reason given in the impugned order is wholly unsustainable, and the Lower Appellate Court has clearly failed to exercise its power under Order 41 Rule 5 CPC.

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In view of that, the Civil Revision Petition is allowed. There shall be stay of execution of decree in O.S.No.586 of 2009 on the file of Additional Senior Civil Judge, Kurnool subject, however, to the condition that the petitioners deposit half of the decreetal amount, calculated as on today, within a period of two months from today. On such deposit, the respondent – decree holder shall be entitled to withdraw the same without furnishing any security. In default of the petitioners complying with the said condition, the stay shall stand vacated, and the Executing Court shall be free to execute the decree. On compliance of the condition as above, the Appellate Court shall determine the appeal on merits.

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Miscellaneous petitions pending, if any, shall also stand disposed of.

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VILAS V.AFZULPURKAR,J

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Date: 13.09.2013 usd

A. Susheelamma, v. Margadarshi Chit Fund (P) Ltd.

Case brief

What is this about?

What did the court decide?

A. Susheelamma, v. Margadarshi Chit Fund (P) Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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