Decree execution


SIR,

   FOR DECREE PASSED ,AN APPEAL AND STAY IS PENDING BEFORE HIGH COURT. FOR ADMISSION AND STAY , HIGH COURT WOULD TAKE LONG TIME PERHAPS 15 MONTHS.WHILE DECREE HOLDER HAS PRAYED TO LOWER COURT TO JAIL THE JDR.CAN PROPERTY BE COURT FOR MONEY DECREE TILL HIGH COURT DECIDES THE APPEAL-RESULT OF WHICH COME VERY LATE?

PL SUGGEST HOW JDR CAN PROTECT FORM JAIL AND CASH DEPOSIT POSITION  ?

 
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ha21@rediffmail.com Mumbai : 9820174108

1. IF matter is already filed in HC, then the matter is sub-judice and no further legal action can be taken on lower court order.

Keep Smiling .... Hemant Agarwal
VISIT:  www.chshelpforum.com

 
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decree holder has stated in  exec court to jail the jdr.as per him -as there is no stay order form hc,hence send TO jail.

though JDR has prayed also to deposit security in court till disposal from hc ,but no relief

in decree case -the court took statement of respondent ,while plaintiff has to prove all .in the decree case plaintiff has uttered that he do not remember the chq issued by him -was from which firm.as jdr admitted that i took money from so decree passed 

 the JDR IS AFRAIDED THAT HE MAY SENTENCED TO JAIL

 
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LEGAL

If there is no stay order from Hig court the execution court will proceed to execute the decree. The only way to sop executing court is to get a stay orer or face the consequencies.

 
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THEN WHAT IS MEANING OF EXTRACT OF BOMBAY HC AS BELOW-

The Apex Court while interpreting the identical provision, in somewhat different circumstances, in the case of Kayamuddin Shamsuddin Khan v. State Bank of India, observed as under ;

"7. ...... .We, however, find that the only consequence for non-compliance with the direction given under Sub-rule (3) of Rule 1 of Order XLI is as provided in Sub-rule (5) of Rule 5 of Order XLI which reads as under :

"(5) 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, the Court shall not make an order staying the execution of the decree."

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."

 the trial Court shall be free to invest the same with any nationalised bank, initially, for a period of 37 months and shall keep the said investment renewed from time to time until further orders.

 
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