Supreme Court: What conditions the Appellate court should impose while staying execution of money decree?

11. To the same effect is the decision of this Court in Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co.   MANU/SC/0315/2005 : (2005)4SCC1 , wherein it was held:

6. Order XLI Rule 1(3) of the CPC provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Under Order XLI Rule 5(5) a deposit or security, as abovesaid, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate cases.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7410-7411 of 2008.

Decided On: 18.12.2008

Malwa Strips Pvt. Ltd. Vs. Jyoti Ltd.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Author: S.B. Sinha, J.

Citation: AIR 2009 SC 1581.

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What principles the appellate court should follow while deciding stay application in appeal preferred against money decree?

11. To the same effect is the decision of this Court in Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co., [MANU/SC/0315/2005 : 2005(2) RCR (Civil) 672 : (2005)4 SCC 1], wherein it was held:-

"6. Order 41 Rule 1(3) of the Civil Procedure Code provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Under Order 41 Rule 5(5) a deposit or security, as abovesaid, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate cases."

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 5598 of 2023

Decided On: 09.01.2024

Sandeep Kumar Vs. Desh Raj and Ors.

Hon'ble Judges/Coram:

Sudeepti Sharma, J.

Citation:  MANU/PH/0526/2024.

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Whether order of maintenance can be enforced as a money decree of a civil court as per the provisions of the CPC?

 VI Final Directions

(e) Enforcement / Execution of orders of maintenance

For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 730 OF 2020

RAJNESH  Vs  NEHA & Anr

Dated: November 4, 2020.

Read full Judgment here: Click here

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Whether the court should dismiss the civil appeal if the appellant fails to comply with the condition imposed for a stay of execution?

 We may, however, notice that although the provisions of Sub-rule (3) of Rule 1 of Order XLI have been held not to be mandatory, this Court in Kayamuddin Shamsuddin Khan v. State Bank of India MANU/SC/1336/1998 : (1998)8SCC676 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.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7410-7411 of 2008

Decided On: 18.12.2008

Malwa Strips Pvt. Ltd.  Vs. Jyoti Ltd.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Citation: AIR 2009 SC 1581

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Whether decree for damages can be treated as money decree?

The expression decree for payment of money in Section 34 of the Civil Procedure Code Act V of 1908 is not to be understood as a technical expression or expression with some reservation. A suit instituted by a litigant claiming damages either in tort or on breach of contract or for payment of damages by a carrier for non-performance of a statutory and other obligations as bailee, resulting in a decree for damages, which damages are obviously and necessarily computed in terms of money, can also be characterised as a decree for payment of money. Therefore, a decree for damages computed by the trial Court after hearing parties, which sum is reckoned by it on the evidence noticed by it, is to be treated and considered as a decree for payment of money. In a case for damages, it would be speculative to award interest for a period prior to the institution of suit because a person claiming such damage cannot be said to have been injured unless and until he quantifies the same in his own way and seeks for relief in a manner, known to law. In the case of damages, the party must suffer an injury and then ask for it. The Court can award interest from the date of the suit to the date of the decree and thereafter under Section 34.

The jurisdiction to provide interest in the decree not- withstanding the fact that there is no reference to it in the judgment, is one which is peculiar to money decrees and the Courts are vested with such jurisdiction. It is only at the time of drafting the decree and signing of the decree by the trial Judge that the question of his discretion under Section 34 of the Civil Procedure Code to provide for interest in a money decree would arise. If he does not provide for such interest, it becomes final and the aggrieved party has no relief. It, therefore, follows that if he provides for interest in the decree, it is lawful and is backed up by express statutory provisions and is not questionable on the technical ground that it is prima facie at variance with the judgment, which in turn is silent about the provision of interest.

IN THE HIGH COURT OF MADRAS

Appeal No. 60 of 1968 and C.M.P. No. 3995 of 1974

Decided On: 18.04.1974

Union of India (UOI)  Vs. A. Venkataiah

Hon'ble Judges/Coram:

Tayi Ramaprasada Rao and S. Natarajan, JJ.

Citation: AIR 1975 Madras 119

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Whether court can pass decree granting benefit of paying decretal amount in installments in mortgage suit?

By virtue of Rule 4 read with Rule 2 of Order 34 C.P.C., in passing a preliminary decree, the Court shall fix a period (and that period must be 6 months or less) within which the defendants shall pay the amount determined to the plaintiff. The decree should specifically refer to the time so granted and direct the defendant to pay the amount determined within such time and allow the plaintiff to apply for a final decree in case the amount is not paid within time fixed. Sub-rule (2) of Rule 4 enables the Court to extend the time for payment of the amount. In a case where the mortgage document does not allow the mortgagor to repay the "amount in instalments, the Court in passing decree under Rule 4 of Order 34, CPC can only grant to the defendant time not exceeding 6 months and cannot grant him the benefit of paying the amount in instalments. Payment in instalments is foreign to the scope of Rule 4 Order 34, CPC.

6. In this connection it may be relevant to notice that Sub-rule (1) of Rule 11 of Order 20, CPC reads thus -

Decree may direct payment by installments --(l)Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable."

The above provision enables the Court passing the decree to grant defendant benefit of paying decretal amount in instalments in the case of "decree for payment of money". It is argued a decree for recovery of money on mortgage can be regarded as decree for recovery of money. A decree under Order 34 Rule 4, CPC is not a decree for payment of money, but it is a decree for recovery of money by sale of mortgaged property. Such a decree has to be passed in conformity with the provisions of Order 34, CPC, and has to be regarded as a decree passed on a mortgage and not a decree for money simpliciter. Therefore, the provisions of Rule 11 of Order 20 , CPC cannot enable the Court to grant the benefit of instalments while passing a decree for enforcement of a mortgage. 

IN THE HIGH COURT OF GAUHATI

Civil Revision No. 351 of 1985

Decided On: 10.02.1992

 Sher Alam Vs.  United Bank of India

Hon'ble Judges/Coram:

U.L. Bhat, C.J.

Citation: AIR 1993 Gauhati 25

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Whether money decree can be executed using contempt of court jurisdiction?

 This has also been reiterated by the Apex Court in the matter of MANU/SC/1031/2003 : (2004) 1 SCC 360 Bank of Baroda vs. Sadruddin Hasan Daya and another. Contempt is a matter between the court and the alleged Contemnor and is not affected in any manner by the rights and obligations of the parties to the litigation inter se. Rama Narang (supra) and MANU/SC/4065/2007 : (2007) 13 SCC 220 Maruti Udyog Limited vs. Mahinder C. Mehta and others, have confirmed this view. Though the Apex Court in the Food Corporation India (supra) has held that one cannot use contempt jurisdiction for enforcement of money decrees, it should be noted that the application in that matter as mentioned in paragraph 13 of the said judgment was for enforcement of the order by attachment of the property by seizing and auctioning the movable and immovable properties of FCI. No such relief in the nature of execution is being sought in the present matter.

IN THE HIGH COURT OF BOMBAY

Contempt Petition No. 2 of 2015 in Company Application (L) No. 70 of 2013 in Company Appeal No. 15 of 2013 in CLB/Company Petition No. 13 of 2012

Decided On: 09.02.2016

 Rajinder Kumar Malhotra
Vs.
 Paresh Biharilal Vyas and Ors.

Coram:K.R. Shriram, J.

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Procedure to be followed by executing court for prompt execution of money decree

In cases for execution of decree for recovery of money, an important
step is to ascertain the assets/means of the judgement debtor to satisfy the
decree. Order XXI Rule 41(2) of the Code of Civil Procedure empowers the
executing Court to direct the judgement debtor to disclose his assets on
affidavit in Form 16A, Appendix E to ascertain his assets/means to satisfy
the decree. Order XXI Rule 41(2) of the Code of Civil Procedure is
reproduced herein below:-
“Order XXI Rule 41
(2) Where a decree for the payment of money has remained
unsatisfied for a period of thirty days, the Court may, on the
application of the decree-holder and without prejudice to its
power under sub-rule (1), by order require the judgmentdebtor
or where the judgment-debtor is a corporation, any
officer thereof, to make an affidavit stating the particulars of
the assets of the judgment-debtor.”
3. Order XXI Rule 41(1) of the Code of Civil Procedure empowers the
executing Court to orally examine the judgment debtor. Order XXI Rule
41(1) of the Code of Civil Procedure is reproduced hereunder: -[
“Order XXI
Rule 41. Examination of judgment-debtor as to his property.-
(1) Where a decree is for the payment of money the decreeholder
may apply to the Court for an Order that—
(a) the judgment-debtor, or
(b) where the judgment-debtor is a corporation, any officer
thereof, or
(c) any other person,
be orally examined as to whether any or what debts are owing
to the judgment-debtor and whether the judgment-debtor has 
any and what other property or means of satisfying the decree;
and the Court may make an order for the attendance and
examination of such judgment -debtor, or officer or other
person, and for the production of any books or documents.”
4. In the event of the judgment debtor’s default to file the affidavit of
assets, Order XXI Rule 41(3) of the Code of Civil Procedure empowers the
Court to detain the judgment debtor in civil prison for a term up to three
months. Order XXI Rule 41(3) of the Code of Civil Procedure is reproduced
below:-
“Order XXI Rule 41
(3) In case of disobedience of any order made under sub-rule
(2), the court making the order, or any court to which the
proceeding is transferred, may direct that the person
disobeying the order be detained in the civil prison for a term
not exceeding three month unless before the expiry of such
terms the court directs his release.”

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11th January, 2016

 EX.P. 275/2012
M/S BHANDARI ENGINEERS
& BUILDERS PVT LTD .

v
M/S MAHARIA RAJ
JOINT VENTURE & ORS .

CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
Citation: 227(2016)DLT302, 2016(155)DRJ212

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Whether salary of Judgment debtor can be attached for unlimited period of time in execution of money decree?

 Bapu Gadgil
Vs.
Respondent: Smt. Rama

Hon'ble Judges/Coram:
N.V. Dabholkar, J.

Civil Procedure Code, 1908 - Section 60(1)(i) Proviso - Attachment - Properties liable - Attachment of salary for a period of twenty-four months - Exempt from attachment for a gap of twelve months - Salary not liable again after time gap of twelve months for the execution of the same decree.

Citation: 2003(1)ALLMR726, 2003(105(1))BOMLR684, I(2003)DMC770

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Bombay HC: Court should record special reasons for stay of execution of money decree

 In my view exercise of power under Order 41, Rule 1(3) of Civil Procedure Code is also necessary looking to the amendment made by the Bombay High Court in exercise of its power under Section 122 of Civil Procedure Code, whereby; proviso came to be inserted in the said provision, In absence of proviso, the Appellate Court had discretion only to grant time to deposit and/or furnish security. Proviso contemplates recording of reasons to dispense with such deposit or security. It is necessary to give purposive construction to the aforesaid provision. The exercise of power under Order 41, Rule 1(3) will curtail one important stage in the litigation i.e. proceedings for execution of the decrees which is bound to reduce the burden of the executing Courts to that extent. Absence of any application under Order 41, Rule 5 of Civil Procedure Code for stay and absence of any order under Order 41, Rule 1(3) is bound to drive the decree holder to the executing Court to execute the decree. In that event, the executing Court will have no option but to initiate proceedings for execution of the decree, which is bound to take considerable time of the litigants and that of executing Court and also bound to cause strain on the purse of the litigants. In this backdrop, I take the purpose of Order 41, Rule 1(3) is to avoid multiplicity of proceedings i.e. appellant may file only appeal and after it is admitted, then again may apply for stay on account of execution proceedings initiated by the decree holder. In order to arrest this tendency to protract litigation and to prevent execution of money decree pending appeal, this provision has been brought on the statute book.

Bombay High Court

Bhogvati Sahakari Sakhar ... vs Chaugule And Sons on 12 December, 2002

Equivalent citations: 2003 (2) MhLJ 562

Bench: V Daga

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Supreme Court: Money decree can be stayed in exceptional cases

 Even if the said provision is not mandatory, the purpose for which such a provision has been inserted should be taken into consideration. An exceptional case has to be made out for stay of execution of a money decree. The Parliamentary intent should have been given effect to. The High Court has not said that any exceptional case has been made out. It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decreetal amount or a part of it and/or directly through the judgment debtor to secure the payment of the decreetal amount is granted. A strong case should be made out for passing an order of stay of execution of the decree in its entirety.

Supreme Court of India

M/S.Malwa Strips Pvt.Ltd. vs M/S.Jyoti Ltd. on 18 December, 2008

Bench: S.B. Sinha, Cyriac Joseph.

Author: S.B. Sinha, J.

Citation: AIR 2009 SC 1581.

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