Holding

Admission of a first appeal under Section 96 CPC is not permissible on the condition of depositing money; such conditional admission is invalid, though a condition may be imposed when interim relief is sought.

Summary

The Management of M/s Devi Theatre filed a first appeal under Section 96 of the Code of Civil Procedure against a decree, and the Karnataka High Court admitted the appeal on the condition that the appellant deposit Rs. 75,000 within eight weeks, otherwise dismissing the appeal. The appellant failed to make the deposit and challenged the conditional admission. The Supreme Court held that Section 96 read with Order 41 Rule 11 does not empower a court to admit an appeal subject to a monetary deposit, as admission must be based solely on the merits of the case. However, the Court clarified that a condition of deposit may be imposed when the appellant seeks interim relief, such as a stay of execution, during the pendency of the appeal. Consequently, the High Court’s order imposing the deposit condition was set aside, and the appeal was restored without any condition. No costs were awarded.

Issues considered

Whether a first appeal under Section 96 CPC can be admitted conditionally on the deposit of a sum of money.
Whether the High Court can impose a condition of deposit as a basis for dismissing the appeal if the deposit is not made.
Whether a court may impose any condition, including a monetary deposit, when granting interim relief during the pendency of a first appeal.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 11, s. Section 96

Subjects

Civil Procedure CodeSection 96first appealconditional admissiondeposit conditioninterim reliefappellate jurisdiction

Judgment

MGMT OF MIS DEVI THEATRE A
v.
VISHWANATH RAJU

APRIL 8, 2004

[BRIJESH KUMAR AND ARUN KUMAR, JJ.] B

Code of Civil Procedure, 1908:

S.96 rlw Order 41, r.11-First appeal-Conditional admission-Legality
of-High Court ordering to admit the appeal subject to appellant depositing C
a certain amount, failing which appeal to stand dismissed-Held, admission
of appeal subject to condition ofdepositing some given amount is not envisaged
by s.96 read with Order 41, r.1/-Merits of the case alone would be basis
for admitting or not admitting an appeal under s.96-Further, imposition of
condition that failure to deposit the amount would result in dismissal of appeal D
compounds the infirmity in the order of conditional admission-However, in
case appellant prays for stay of execution of decree or for any order by way
of interim reliefpending appeal, it is open for the Court to impose any condition
as it may think fit-Order passed by High Court in so far as it imposes
condition of deposit in admitting the appeal is set aside-Order of admission
offirst appeal would be treated without condition of deposit. E
CIVIL APPELLATE JURISDICTION : Civil. Appeal Nos. 2582-2583
of 2004.

From the Judgment and Order dated 9.1.2003 of the Karnataka High
t; Court in R.F.A. No. 267 of 2001. F
R.S. Hegde, Chandra Prakash, P. Devesh, Ms. Savithri Pandey and P.P. ·
Singh for the Appellant.

S.N. Bhat for the Respondent
G
The following Order of the Court was delivered

Delay condoned.

Leave granted.
1039 H
1040 SUPREME COURT REPORTS (2004) 3 S.C.R.

A The appellant before us preferred a first ~ppeal under Section 96 of
Civil Procedure Code before the High Court of Kamataka on which the
following order was passed.

"Admit subject to the condition the appellant depositing Rs. 75,000
within a period of eight weeks, failing which the appeal stands
B dismissed without further orders."

It appears that the amount as required to be deposited was not deposited.
The application which was moved for extension of time remained undisposed I
,j,
of. The impugned order passed showed that since the deposit has not been
made the inevitable consequence was that the appeal stood dismissed.
c
The learned counsel for the appellant submits that appeal lies from
every decree passed by any court exercising original jurisdiction. The
jurisdiction of the Court in first appeal extends to examine the questions of
facts as well as that of law. It is though true as pointed out by the learned
D counsel for the respondent that under Order 41 Rule 11 CPC it would be
open for the court to dismiss the appeal in limine at the time of admission but
even examining the matter from that point of view we find that the court
while considering the question of admission of appea! filed under Section 96
CPC, may admit the appeal if considered fit for full hearing having prima
..
facie merit. Otherwise,. if it finds that the appeal lacks merits it may be
E dismissed at the initial stage itself. But admission of the appeal, subject to
condition of deposit of some given amount, is not envisaged in the provision
as contained under Section 96 read with Order 41 Rule 11 CPC. The deposit
of the money would obviously have no connection with the merits of the
case, which alone would be basis for admitting or not admitting an appeal
F filed under Section 96 CPC. Further, imposition of condition that failure to
deposit the amount, would result in dismissal of the appeal compounds the ..j
' I
infirmity in the order of conditional admission.

It is a different matter, in case the appellant prays for stay of the
execution of the decree or for any order by way of an interim relief during
G the pendency of the appeal, it is open for the court to impose any condition
as it may think fit and proper in the facts and circumstances of the case.
Otherwise imposing a condition of deposit of money subject to which an
appeal may be admitted for hearing on merits, is not legally justified and
such order cunnot be sustained.

H In the result the appeal is allowed, the impugned order passed by the
MGMT OF M/S DEVI THEA TllE v. VISHW ANA TH RAJU I041
High Court in so far it imposes condition of deposit in admitting the appeal A
\'...,;,,-
is set aside. The order of admission of the first appeal in High Court would
be treated without condition of deposit. It is, however, clarified that it would
be open to the High Court to impose any condition including for deposit of
any amount, in case any kind of interim relief is granted during pendency of
the appeal. Consequently, the first appeal stands restored to the file of the B
court which shall be considered and decided on merits expeditiously.

No costs. Appeal allowed.