Stay of money decree execution may be secured by immovable property, not only cash deposit, if judicially justified.

Order XLI Rule 1(3) and Order XLI Rule 5(5) CPC confer discretion on the appellate court to require either deposit of the disputed amount or other security as it considers fit when granting stay of execution of a money decree. That discretion must be exercised judicially on the facts, and although execution of a money decree is ordinarily not stayed because restitution remains available on appeal, suitable stay conditions may still be imposed. On the facts, security of immovable property was held sufficient, and the insistence on cash deposit was unwarranted. The condition requiring cash deposit was set aside.

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Issues: Whether, in an appeal against a money decree, the appellate court may insist on deposit in cash as a condition for stay of execution or permit security instead.

Analysis: Order XLI Rule 1(3) and Order XLI Rule 5(5) of the Code of Civil Procedure confer discretion on the appellate court to require either deposit of the disputed amount or such security as it may think fit. That discretion must be exercised judicially on the facts of the case. Ordinarily, execution of a money decree is not stayed because restitution remains available if the appeal succeeds, but the court may still grant stay in appropriate cases on suitable terms. On the facts, a case for stay was already made out, and the real question was only whether cash deposit should be insisted upon or security could be accepted. The Court found that security of immovable property was sufficient and that public interest would be better served by permitting retention of the amount during the pendency of the appeal.

Conclusion: The appellate court ought to have accepted security instead of insisting on cash deposit, and the condition requiring cash deposit was set aside.

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