Published on: 02 September 2023 at 12:23 IST
Court: Supreme Court
Citation: Inderchand Jain V. Motilal (2009)
Honourable Supreme Court of India has held that the Hon’ble Courts must not grant stay upon execution of the decree upon filing of the Civil Appeal. The Execution of the Decree during pendency of the appeal would, thus, be subject to the restitution of the property in the event the appeal is allowed
29. Order 41 Rule 1 of the Code stipulates that filing of an appeal would not amount to automatic stay of the execution of the decree. The law acknowledges that during pendency of the appeal it is possible for the decree-holder to get the decree executed. The execution of the decree during pendency of the appeal would, thus, be subject to the restitution of the property in the event the appeal is allowed and the decree is set aside. The court only at the time of passing a judgment and decree reversing that of the appellate court should take into consideration the subsequent events, but, by no stretch of imagination, can refuse to do so despite arriving at the findings that the plaintiff would not be entitled to grant of a decree.
30. Discretionary jurisdiction, it is trite, can be exercised provided there is any room for the court to do the same and not otherwise. The court while exercising its jurisdiction would not act arbitrarily or beyond the contours of law. The contention of the plaintiff that he had also prayed for grant of a decree in the alternative viz. in the event the court came to the conclusion that there had been no novation of contract, he was ready and willing to deposit the entire amount. No conditional offer was permissible in a suit for specific performance of contract.
Drafted By Abhijit Mishra
