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TMI Blog2008 (12) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... orporated under the said Act. It has its registered office at Nanubhai Amin Marg, Industrial Area, Vadodara. Respondent used to place orders for supply of copper rods strips and foils from time to time with the appellant. Allegedly, the payments used to be made towards the said supply from time to time. Appellant, inter alia, on the premise that a sum of Rs. 49,03,908.29 was owed to it by the respondent filed a Summary Suit under Order XXXVII of the Code of civil Procedure, 1908 (for short, the Code ). An application for leave to defend the suit was filed by the respondent. Appellant contended that as the respondent raised a defence only as regards the rate of interest and not the principal amount, its application should be dismissed. By an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of stay, we are of the view that a ground for stay, as contemplated under Order 41 Rule 5 CPC is made out. We are, therefore, inclined to stay execution of the decree pending appeal. Appellant is, thus, before us. 3. Mr. Shiv Sagar Tiwari, learned Counsel appearing on behalf of the appellant would submit that the High Court committed a serious error of law in passing the impugned judgment insofar as it failed to take into consideration that the defendant - respondent had raised no substantive and bona fide defence and that in view of the matter it was not a case where the execution of the decree should have been stayed. 4. Ms. Kamini Jaiswal, learned Counsel appearing on behalf of the respondent, on the other hand, would urge that compou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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. 7. In terms of Sub-rule (5) of Rule 5 of Order XLI, the court shall not make an order staying the execution of the decree notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in Sub-rule (3) of Rule 1. 8. We will proceed on the assumption that although the word `shall' has been used in Order X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Kayamuddin Shamsuddin Khan v. State Bank of India (1998) 8 SCC 676 opined that non-compliance of a direction to deposit the decretal amount or part of it or furnish security therefore would result in the dismissal of the stay application but not the entire appeal, stating: 8. This would mean that non-compliance with the direction given regarding deposit under Sub-rule (3) of Rule 1 of Order XLI would result in the Court refusing to stay the execution of the decree. In other words, the application for stay of the execution of the decree could be dismissed for such non-compliance but the Court could not give a direction for the dismissal of the appeal itself for such non-compliance. 11. To the same effect is the decision of this Court in Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Sub-rule (3) of Rule 1 of Order XLI. The appellate court, indisputably, has the discretion to direct deposit of such amount, as it may think fit, although the decretal amount has not been deposited in its entirety by the judgment debtor at the time of filing of the appeal. But while granting stay of the execution of the decree, it must take into consideration the facts and circumstances of the case before it. It is not to act arbitrarily either way. If a stay is granted, sufficient cause must be shown, which means that the materials on record were required to be perused and reasons are to be assigned. Such reasons should be cogent and adequate. The High Court, with respect, failed to notice that suit was one under Order XXXVII ..... X X X X Extracts X X X X X X X X Extracts X X X X
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