Semantic Analysis by spaCy
Bansidhar Vs. Pribhu Dayal
Decided On : Oct-22-1952
Court : Rajasthan
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C.' ), 'DATE' => array( (int) 0 => 'today', (int) 1 => '29-8-1952', (int) 2 => 'these days' ), 'ORG' => array( (int) 0 => 'the Court of the Civil Judge', (int) 1 => 'Alwar for Rs', (int) 2 => 'Court', (int) 3 => 'Alwar', (int) 4 => 'Court', (int) 5 => 'Court', (int) 6 => 'Court', (int) 7 => 'AIR', (int) 8 => 'Movie Enterprises', (int) 9 => 'Court', (int) 10 => 'Court', (int) 11 => 'Court', (int) 12 => 'Court', (int) 13 => 'Court', (int) 14 => 'Judges of the Mysore High Court', (int) 15 => 'Court', (int) 16 => 'Court', (int) 17 => 'the Appellate Court', (int) 18 => 'Court', (int) 19 => 'Court', (int) 20 => 'GovindaBapu', (int) 21 => 'AIR 1934 Nag 160', (int) 22 => 'theCourt', (int) 23 => 'Court', (int) 24 => 'Court', (int) 25 => 'Court', (int) 26 => 'Court', (int) 27 => 'Court', (int) 28 => 'Court' ), 'LOC' => array( (int) 0 => 'the District Judge' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'first', (int) 2 => 'first', (int) 3 => 'second' ), 'CARDINAL' => array( (int) 0 => '2', (int) 1 => '29', (int) 2 => '2', (int) 3 => '3', (int) 4 => '3', (int) 5 => 'less than 50,000', (int) 6 => 'three', (int) 7 => '13', (int) 8 => '5.', (int) 9 => '3', (int) 10 => '1', (int) 11 => '2', (int) 12 => '6.', (int) 13 => '8.', (int) 14 => '9', (int) 15 => '10', (int) 16 => '29' ), 'GPE' => array( (int) 0 => 'Alwar' ), 'EVENT' => array( (int) 0 => 'Mys 78' ) ), 'desc' => array( 'Judgement' => array( 'id' => '750379', 'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 51 - Order 41, Rule 5', 'appealno' => 'Second Appeal No. 237 of 1952', 'appellant' => 'Bansidhar', 'authreffered' => '', 'casename' => 'Bansidhar Vs. Pribhu Dayal', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. The first ground, namely, that the appellant has no ready money and that there is a general financial stringency is very vague and unconvincing. Under Order 41, Rule 5 'an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order and the section further lays down that execution of a dceree shall not be stayed by reason only of an appeal having been preferred from the decree'.In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause and the appellate Court considers it sufficient for staying the execution. Sub-rule 3 further provides that no order for stay of execution shall be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made. the kind of loss must be specified, details must be given, and the conscience of theCourt must be satisfied that such loss will reallyensue. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied,-(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly, transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property;', 'caseanalysis' => null, 'casesref' => 'Anandi Prashad v. GovindaBapu;', 'citingcases' => '', 'counselplain' => ' R.K. Rastogi, Adv.', 'counseldef' => ' R.A. Gupta, Adv.', 'court' => 'Rajasthan', 'court_type' => 'HC', 'decidedon' => '1952-10-22', 'deposition' => 'Application dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Ranawat and; Dave, JJ.', 'judgement' => '<p style="text-align: justify;">Dave, J. </p><p style="text-align: justify;">1. This case comes today for determination of the appellant's application under Order 41, Rule 5, Civil P. C. The respondent had filed a suit against the appellant in the Court of the Civil Judge, Alwar for Rs. 3437/8/- on account of the loss sustained by him for alleged breach of contract committed by the appellant in refusing to take delivery of the goods. The trial Court dismissed the suit but on the plaintiff's appeal to the District Judge, Alwar, a decree for Rs. 2750/- with proportionate cost in both the Courts has been given in his favour. The defendant has, therefore, come here in second appeal and presented a petition for staying the execution of the decree pending the decision of this appeal. On 29-8-1952, notice was issued to the opposite party to show cause why the stay application be not allowed, and an ad interim order to stay the execution was passed on that date. The appellant's learned advocate wants the order to be made absolute while the respondent's learned advocate seriously contests it on the ground that the appellant has sufficient means to pay up the decree and no substantial loss is likely to occur to him. </p><p style="text-align: justify;">2. It appears from the appellant's application dated 29-8-1952, that he has requested for staying the execution on the following grounds: . </p><p style="text-align: justify;">'1. that the appellant has no ready money topay and at the same time payment of theheavy sum is difficult in these days of financial stringency. </p><p style="text-align: justify;"> 2. that if the appellant transfers his property it snail fetch a very low price below the fair one and he will suffer substantial loss. </p><p style="text-align: justify;"> 3. If the appellant is arrested and sent to Civil prison he will lose all his business and reputation.' </p><p style="text-align: justify;">3. In support of his application he has filed an affidavit. The respondent on the other hand has stated in his reply that it is entirely incorrect to say that the appellant is unable to make payment of the decretal amount. It is alleged that the marketable goods and cash in addition to his immovable property and jewellery are in no way less than 50,000 rupees, and that he is carrying on business in Alwar market on a large scale. He has also filed his own affidavit and also three other affidavits of Ramji Lal, Kedar Nath and Ladu Ram to the same effect. He has argued that this is only a money decree against the appellant and this Court should not stay the proceedings. In support of his argument he has referred to the case of -- 'Dhunjibhoy Cowasji Umrigar v. Lisboa' 13 Bom 241 (A), where it was held that </p><p style="text-align: justify;">'A party appealing against a decree, which directs him to pay money, may obtain stay of execution of decree, so far as it directs payment on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted.' </p><p style="text-align: justify;">The appellant's learned advocate contends that under Order 41, Rule 5 the law makes no distinction between money decrees and other kinds of decrees and that in case a judgment-debtor suffers substantial loss on account of execution of the decree the appellate Court should stay the execution. He has referred to the case of -- 'A. A. Khan v. Ameer Khan', AIR 1950 Mys 11 (B) and -- 'Movie Enterprises v. M. S. Periasamy Mudaliar', AIR 1952 Mys 78 (C). In the former case it was held that </p><p style="text-align: justify;">'The Court can stay execution of money decree pending appeal on such security as it deems fit in proper cases in which sufficient cause for a stay has been made out. without requiring in all cases that the decree amount should be deposited in Court.' </p><p style="text-align: justify;">This view was followed in the latter case where it was further observed that </p><p style="text-align: justify;">'Order 41, Rule 5 cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in the matter of stay pending appeal. Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. In this view, it. cannot be contended that a decree directing payment of money should not be stayed unless the decree amount is lodged into Court.' </p><p style="text-align: justify;">4. I respectfully agree with the learned Judges of the Mysore High Court that Order 41, Rule 5 does not make any distinction between money decrees and other decrees and the powers of the appellate Court to order stay of execution of money decree is not fettered in case there is sufficient cause for passing such an order. </p><p style="text-align: justify;">5. In the present case, however, I find that I the appellant has not been able to make out sufficient cause for staying the execution. The first ground, namely, that the appellant has no ready money and that there is a general financial stringency is very vague and unconvincing. The appellant may not be in possession of cash but he should have disclosed his assets and liabilities or he should have given a detailed account of his financial position for this Court to judge whether he had other property sufficient to pay up his decretal amount without any hardship. The mere reference to present financial stringency is to my mind of no avail for staying the execution of the decree. If this ground alone is allowed to prevail then every judgment-debtor would be able to get the execution of the decree stayed in appeal without further proving that such execution would result in substantial loss to him. Under Order 41, Rule 5 'an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order and the section further lays down that execution of a dceree shall not be stayed by reason only of an appeal having been preferred from the decree'. In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause and the appellate Court considers it sufficient for staying the execution. Sub-rule 3 further provides that no order for stay of execution shall be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made. </p><p style="text-align: justify;">6. In the case of -- 'Anandi Prashad v. GovindaBapu', AIR 1934 Nag 160 (D), it was observed bythe learned Judge Vivian Bose A. J. C. that </p><p style="text-align: justify;">'It is not enough merely to repeat the words of.the Code and state that substantial loss willresult; the kind of loss must be specified, details must be given, and the conscience of theCourt must be satisfied that such loss will reallyensue.' </p><p style="text-align: justify;">It was further observed that</p><p style="text-align: justify;">'the words 'substantial loss' cannot mean the ordinary loss to which every judgment-debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of excution as an ordinary rule, it is clear the words 'substantial loss' must mean something in addition to and different from that.' </p><p style="text-align: justify;">7. It is abundantly clear that the appellant is not simply to show the balance of convenience in his favour nor it is sufficient for him to say that no harm would be done to the other party if the execution is stayed. In order to get the substantial loss i.e., it should be a loss more than what should ordinarily result from the execution of the decree in the normal circumstances. The first ground is, therefore, very vague. The second ground alleged by the appellant is equally vague because he has not disclosed what property he has got and why it will not fetch a fair price. </p><p style="text-align: justify;">8. The last ground of the appellant that if heis arrested and sent to civil prison, he will loosehis business and reputation is worth consideration,but for the present there is no material beforethe Court to conclude that the appellant is notin a position to pay the money and that the executing Court will send him to civil prison. Thejudgment-debtor cannot be sent to civil prison atthe mere request of the decree-holder. </p><p style="text-align: justify;">9. Section 51, Civil P. C. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied,-- </p><p style="text-align: justify;">(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-- </p><p style="text-align: justify;"> (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or </p><p style="text-align: justify;"> (ii) has, after the institution of the suit in which the decree was passed, dishonestly, transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.' </p><p style="text-align: justify;">10. The law has thus provided safeguards to protect an honest judgment-debtor who is really unable to pay up the decree. Learned counsel for the respondent has stated that in case the executing Court finds that the judgment-debtor is really not in a position to pay the decretal amount and if it still thinks of sending the appellant to civil prison, the appellant may apply for the stay of the execution and the respondent will have no objection to the stay being granted at that time. This is quite reasonable in my view. The appellant has not been able to make sufficient cause to stay the execution of the order at present and therefore, the order of this Court dated 29-8-1952 is vacated and the application is dismissed. </p><p style="text-align: justify;">Ranawat, J. </p><p style="text-align: justify;">11. I agree. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1954Raj1', 'ratiodecidendi' => '', 'respondent' => 'Pribhu Dayal', 'sub' => 'Civil', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '750379' ) ) $title_for_layout = 'Bansidhar Vs. Pribhu Dayal Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Order 41', (int) 1 => 'Rule 5', (int) 2 => 'Order 41', (int) 3 => 'Rule 5', (int) 4 => 'Mys 11', (int) 5 => 'Order 41', (int) 6 => 'Rule 5', (int) 7 => 'Order 41', (int) 8 => 'Rule 5', (int) 9 => 'Order 41', (int) 10 => 'Rule 5 '', (int) 11 => 'Section 51' ), 'PERSON' => array( (int) 0 => 'Dave', (int) 1 => 'Civil P. C.', (int) 2 => 'Ramji Lal', (int) 3 => 'Kedar Nath', (int) 4 => 'Ladu Ram', (int) 5 => 'Lisboa', (int) 6 => 'A. A. Khan v.', (int) 7 => 'Ameer Khan'', (int) 8 => 'M. S. Periasamy Mudaliar'', (int) 9 => 'Anandi Prashad', (int) 10 => 'Vivian Bose A. J. C.', (int) 11 => 'Civil P. C.' ), 'DATE' => array( (int) 0 => 'today', (int) 1 => '29-8-1952', (int) 2 => 'these days' ), 'ORG' => array( (int) 0 => 'the Court of the Civil Judge', (int) 1 => 'Alwar for Rs', (int) 2 => 'Court', (int) 3 => 'Alwar', (int) 4 => 'Court', (int) 5 => 'Court', (int) 6 => 'Court', (int) 7 => 'AIR', (int) 8 => 'Movie Enterprises', (int) 9 => 'Court', (int) 10 => 'Court', (int) 11 => 'Court', (int) 12 => 'Court', (int) 13 => 'Court', (int) 14 => 'Judges of the Mysore High Court', (int) 15 => 'Court', (int) 16 => 'Court', (int) 17 => 'the Appellate Court', (int) 18 => 'Court', (int) 19 => 'Court', (int) 20 => 'GovindaBapu', (int) 21 => 'AIR 1934 Nag 160', (int) 22 => 'theCourt', (int) 23 => 'Court', (int) 24 => 'Court', (int) 25 => 'Court', (int) 26 => 'Court', (int) 27 => 'Court', (int) 28 => 'Court' ), 'LOC' => array( (int) 0 => 'the District Judge' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'first', (int) 2 => 'first', (int) 3 => 'second' ), 'CARDINAL' => array( (int) 0 => '2', (int) 1 => '29', (int) 2 => '2', (int) 3 => '3', (int) 4 => '3', (int) 5 => 'less than 50,000', (int) 6 => 'three', (int) 7 => '13', (int) 8 => '5.', (int) 9 => '3', (int) 10 => '1', (int) 11 => '2', (int) 12 => '6.', (int) 13 => '8.', (int) 14 => '9', (int) 15 => '10', (int) 16 => '29' ), 'GPE' => array( (int) 0 => 'Alwar' ), 'EVENT' => array( (int) 0 => 'Mys 78' ) ) $desc = array( 'Judgement' => array( 'id' => '750379', 'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 51 - Order 41, Rule 5', 'appealno' => 'Second Appeal No. 237 of 1952', 'appellant' => 'Bansidhar', 'authreffered' => '', 'casename' => 'Bansidhar Vs. Pribhu Dayal', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. The first ground, namely, that the appellant has no ready money and that there is a general financial stringency is very vague and unconvincing. Under Order 41, Rule 5 'an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order and the section further lays down that execution of a dceree shall not be stayed by reason only of an appeal having been preferred from the decree'.In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause and the appellate Court considers it sufficient for staying the execution. Sub-rule 3 further provides that no order for stay of execution shall be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made. the kind of loss must be specified, details must be given, and the conscience of theCourt must be satisfied that such loss will reallyensue. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied,-(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly, transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property;', 'caseanalysis' => null, 'casesref' => 'Anandi Prashad v. GovindaBapu;', 'citingcases' => '', 'counselplain' => ' R.K. Rastogi, Adv.', 'counseldef' => ' R.A. Gupta, Adv.', 'court' => 'Rajasthan', 'court_type' => 'HC', 'decidedon' => '1952-10-22', 'deposition' => 'Application dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Ranawat and; Dave, JJ.', 'judgement' => '<p style="text-align: justify;">Dave, J. </p><p style="text-align: justify;">1. This case comes today for determination of the appellant's application under Order 41, Rule 5, Civil P. C. The respondent had filed a suit against the appellant in the Court of the Civil Judge, Alwar for Rs. 3437/8/- on account of the loss sustained by him for alleged breach of contract committed by the appellant in refusing to take delivery of the goods. The trial Court dismissed the suit but on the plaintiff's appeal to the District Judge, Alwar, a decree for Rs. 2750/- with proportionate cost in both the Courts has been given in his favour. The defendant has, therefore, come here in second appeal and presented a petition for staying the execution of the decree pending the decision of this appeal. On 29-8-1952, notice was issued to the opposite party to show cause why the stay application be not allowed, and an ad interim order to stay the execution was passed on that date. The appellant's learned advocate wants the order to be made absolute while the respondent's learned advocate seriously contests it on the ground that the appellant has sufficient means to pay up the decree and no substantial loss is likely to occur to him. </p><p style="text-align: justify;">2. It appears from the appellant's application dated 29-8-1952, that he has requested for staying the execution on the following grounds: . </p><p style="text-align: justify;">'1. that the appellant has no ready money topay and at the same time payment of theheavy sum is difficult in these days of financial stringency. </p><p style="text-align: justify;"> 2. that if the appellant transfers his property it snail fetch a very low price below the fair one and he will suffer substantial loss. </p><p style="text-align: justify;"> 3. If the appellant is arrested and sent to Civil prison he will lose all his business and reputation.' </p><p style="text-align: justify;">3. In support of his application he has filed an affidavit. The respondent on the other hand has stated in his reply that it is entirely incorrect to say that the appellant is unable to make payment of the decretal amount. It is alleged that the marketable goods and cash in addition to his immovable property and jewellery are in no way less than 50,000 rupees, and that he is carrying on business in Alwar market on a large scale. He has also filed his own affidavit and also three other affidavits of Ramji Lal, Kedar Nath and Ladu Ram to the same effect. He has argued that this is only a money decree against the appellant and this Court should not stay the proceedings. In support of his argument he has referred to the case of -- 'Dhunjibhoy Cowasji Umrigar v. Lisboa' 13 Bom 241 (A), where it was held that </p><p style="text-align: justify;">'A party appealing against a decree, which directs him to pay money, may obtain stay of execution of decree, so far as it directs payment on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted.' </p><p style="text-align: justify;">The appellant's learned advocate contends that under Order 41, Rule 5 the law makes no distinction between money decrees and other kinds of decrees and that in case a judgment-debtor suffers substantial loss on account of execution of the decree the appellate Court should stay the execution. He has referred to the case of -- 'A. A. Khan v. Ameer Khan', AIR 1950 Mys 11 (B) and -- 'Movie Enterprises v. M. S. Periasamy Mudaliar', AIR 1952 Mys 78 (C). In the former case it was held that </p><p style="text-align: justify;">'The Court can stay execution of money decree pending appeal on such security as it deems fit in proper cases in which sufficient cause for a stay has been made out. without requiring in all cases that the decree amount should be deposited in Court.' </p><p style="text-align: justify;">This view was followed in the latter case where it was further observed that </p><p style="text-align: justify;">'Order 41, Rule 5 cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in the matter of stay pending appeal. Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. In this view, it. cannot be contended that a decree directing payment of money should not be stayed unless the decree amount is lodged into Court.' </p><p style="text-align: justify;">4. I respectfully agree with the learned Judges of the Mysore High Court that Order 41, Rule 5 does not make any distinction between money decrees and other decrees and the powers of the appellate Court to order stay of execution of money decree is not fettered in case there is sufficient cause for passing such an order. </p><p style="text-align: justify;">5. In the present case, however, I find that I the appellant has not been able to make out sufficient cause for staying the execution. The first ground, namely, that the appellant has no ready money and that there is a general financial stringency is very vague and unconvincing. The appellant may not be in possession of cash but he should have disclosed his assets and liabilities or he should have given a detailed account of his financial position for this Court to judge whether he had other property sufficient to pay up his decretal amount without any hardship. The mere reference to present financial stringency is to my mind of no avail for staying the execution of the decree. If this ground alone is allowed to prevail then every judgment-debtor would be able to get the execution of the decree stayed in appeal without further proving that such execution would result in substantial loss to him. Under Order 41, Rule 5 'an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order and the section further lays down that execution of a dceree shall not be stayed by reason only of an appeal having been preferred from the decree'. In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause and the appellate Court considers it sufficient for staying the execution. Sub-rule 3 further provides that no order for stay of execution shall be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made. </p><p style="text-align: justify;">6. In the case of -- 'Anandi Prashad v. GovindaBapu', AIR 1934 Nag 160 (D), it was observed bythe learned Judge Vivian Bose A. J. C. that </p><p style="text-align: justify;">'It is not enough merely to repeat the words of.the Code and state that substantial loss willresult; the kind of loss must be specified, details must be given, and the conscience of theCourt must be satisfied that such loss will reallyensue.' </p><p style="text-align: justify;">It was further observed that</p><p style="text-align: justify;">'the words 'substantial loss' cannot mean the ordinary loss to which every judgment-debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of excution as an ordinary rule, it is clear the words 'substantial loss' must mean something in addition to and different from that.' </p><p style="text-align: justify;">7. It is abundantly clear that the appellant is not simply to show the balance of convenience in his favour nor it is sufficient for him to say that no harm would be done to the other party if the execution is stayed. In order to get the substantial loss i.e., it should be a loss more than what should ordinarily result from the execution of the decree in the normal circumstances. The first ground is, therefore, very vague. The second ground alleged by the appellant is equally vague because he has not disclosed what property he has got and why it will not fetch a fair price. </p><p style="text-align: justify;">8. The last ground of the appellant that if heis arrested and sent to civil prison, he will loosehis business and reputation is worth consideration,but for the present there is no material beforethe Court to conclude that the appellant is notin a position to pay the money and that the executing Court will send him to civil prison. Thejudgment-debtor cannot be sent to civil prison atthe mere request of the decree-holder. </p><p style="text-align: justify;">9. Section 51, Civil P. C. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied,-- </p><p style="text-align: justify;">(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-- </p><p style="text-align: justify;"> (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or </p><p style="text-align: justify;"> (ii) has, after the institution of the suit in which the decree was passed, dishonestly, transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.' </p><p style="text-align: justify;">10. The law has thus provided safeguards to protect an honest judgment-debtor who is really unable to pay up the decree. Learned counsel for the respondent has stated that in case the executing Court finds that the judgment-debtor is really not in a position to pay the decretal amount and if it still thinks of sending the appellant to civil prison, the appellant may apply for the stay of the execution and the respondent will have no objection to the stay being granted at that time. This is quite reasonable in my view. The appellant has not been able to make sufficient cause to stay the execution of the order at present and therefore, the order of this Court dated 29-8-1952 is vacated and the application is dismissed. </p><p style="text-align: justify;">Ranawat, J. </p><p style="text-align: justify;">11. I agree. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1954Raj1', 'ratiodecidendi' => '', 'respondent' => 'Pribhu Dayal', 'sub' => 'Civil', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '750379' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Warning (2): Invalid argument supplied for foreach() [APP/View/Case/meta.ctp, line 39]Code Context//$shops = $shops['entities'];foreach ($shops2 as $key => $val) {$viewFile = '/home/legalcrystal/app/View/Case/meta.ctp' $dataForView = array( 'title_for_layout' => 'Bansidhar Vs. Pribhu Dayal Semantic Analysis', 'shops' => array( 'LAW' => array( (int) 0 => 'Order 41', (int) 1 => 'Rule 5', (int) 2 => 'Order 41', (int) 3 => 'Rule 5', (int) 4 => 'Mys 11', (int) 5 => 'Order 41', (int) 6 => 'Rule 5', (int) 7 => 'Order 41', (int) 8 => 'Rule 5', (int) 9 => 'Order 41', (int) 10 => 'Rule 5 '', (int) 11 => 'Section 51' ), 'PERSON' => array( (int) 0 => 'Dave', (int) 1 => 'Civil P. C.', (int) 2 => 'Ramji Lal', (int) 3 => 'Kedar Nath', (int) 4 => 'Ladu Ram', (int) 5 => 'Lisboa', (int) 6 => 'A. A. Khan v.', (int) 7 => 'Ameer Khan'', (int) 8 => 'M. S. Periasamy Mudaliar'', (int) 9 => 'Anandi Prashad', (int) 10 => 'Vivian Bose A. J. C.', (int) 11 => 'Civil P. C.' ), 'DATE' => array( (int) 0 => 'today', (int) 1 => '29-8-1952', (int) 2 => 'these days' ), 'ORG' => array( (int) 0 => 'the Court of the Civil Judge', (int) 1 => 'Alwar for Rs', (int) 2 => 'Court', (int) 3 => 'Alwar', (int) 4 => 'Court', (int) 5 => 'Court', (int) 6 => 'Court', (int) 7 => 'AIR', (int) 8 => 'Movie Enterprises', (int) 9 => 'Court', (int) 10 => 'Court', (int) 11 => 'Court', (int) 12 => 'Court', (int) 13 => 'Court', (int) 14 => 'Judges of the Mysore High Court', (int) 15 => 'Court', (int) 16 => 'Court', (int) 17 => 'the Appellate Court', (int) 18 => 'Court', (int) 19 => 'Court', (int) 20 => 'GovindaBapu', (int) 21 => 'AIR 1934 Nag 160', (int) 22 => 'theCourt', (int) 23 => 'Court', (int) 24 => 'Court', (int) 25 => 'Court', (int) 26 => 'Court', (int) 27 => 'Court', (int) 28 => 'Court' ), 'LOC' => array( (int) 0 => 'the District Judge' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'first', (int) 2 => 'first', (int) 3 => 'second' ), 'CARDINAL' => array( (int) 0 => '2', (int) 1 => '29', (int) 2 => '2', (int) 3 => '3', (int) 4 => '3', (int) 5 => 'less than 50,000', (int) 6 => 'three', (int) 7 => '13', (int) 8 => '5.', (int) 9 => '3', (int) 10 => '1', (int) 11 => '2', (int) 12 => '6.', (int) 13 => '8.', (int) 14 => '9', (int) 15 => '10', (int) 16 => '29' ), 'GPE' => array( (int) 0 => 'Alwar' ), 'EVENT' => array( (int) 0 => 'Mys 78' ) ), 'desc' => array( 'Judgement' => array( 'id' => '750379', 'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 51 - Order 41, Rule 5', 'appealno' => 'Second Appeal No. 237 of 1952', 'appellant' => 'Bansidhar', 'authreffered' => '', 'casename' => 'Bansidhar Vs. Pribhu Dayal', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. The first ground, namely, that the appellant has no ready money and that there is a general financial stringency is very vague and unconvincing. Under Order 41, Rule 5 'an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order and the section further lays down that execution of a dceree shall not be stayed by reason only of an appeal having been preferred from the decree'.In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause and the appellate Court considers it sufficient for staying the execution. Sub-rule 3 further provides that no order for stay of execution shall be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made. the kind of loss must be specified, details must be given, and the conscience of theCourt must be satisfied that such loss will reallyensue. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied,-(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly, transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property;', 'caseanalysis' => null, 'casesref' => 'Anandi Prashad v. GovindaBapu;', 'citingcases' => '', 'counselplain' => ' R.K. Rastogi, Adv.', 'counseldef' => ' R.A. Gupta, Adv.', 'court' => 'Rajasthan', 'court_type' => 'HC', 'decidedon' => '1952-10-22', 'deposition' => 'Application dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Ranawat and; Dave, JJ.', 'judgement' => '<p style="text-align: justify;">Dave, J. </p><p style="text-align: justify;">1. This case comes today for determination of the appellant's application under Order 41, Rule 5, Civil P. C. The respondent had filed a suit against the appellant in the Court of the Civil Judge, Alwar for Rs. 3437/8/- on account of the loss sustained by him for alleged breach of contract committed by the appellant in refusing to take delivery of the goods. The trial Court dismissed the suit but on the plaintiff's appeal to the District Judge, Alwar, a decree for Rs. 2750/- with proportionate cost in both the Courts has been given in his favour. The defendant has, therefore, come here in second appeal and presented a petition for staying the execution of the decree pending the decision of this appeal. On 29-8-1952, notice was issued to the opposite party to show cause why the stay application be not allowed, and an ad interim order to stay the execution was passed on that date. The appellant's learned advocate wants the order to be made absolute while the respondent's learned advocate seriously contests it on the ground that the appellant has sufficient means to pay up the decree and no substantial loss is likely to occur to him. </p><p style="text-align: justify;">2. It appears from the appellant's application dated 29-8-1952, that he has requested for staying the execution on the following grounds: . </p><p style="text-align: justify;">'1. that the appellant has no ready money topay and at the same time payment of theheavy sum is difficult in these days of financial stringency. </p><p style="text-align: justify;"> 2. that if the appellant transfers his property it snail fetch a very low price below the fair one and he will suffer substantial loss. </p><p style="text-align: justify;"> 3. If the appellant is arrested and sent to Civil prison he will lose all his business and reputation.' </p><p style="text-align: justify;">3. In support of his application he has filed an affidavit. The respondent on the other hand has stated in his reply that it is entirely incorrect to say that the appellant is unable to make payment of the decretal amount. It is alleged that the marketable goods and cash in addition to his immovable property and jewellery are in no way less than 50,000 rupees, and that he is carrying on business in Alwar market on a large scale. He has also filed his own affidavit and also three other affidavits of Ramji Lal, Kedar Nath and Ladu Ram to the same effect. He has argued that this is only a money decree against the appellant and this Court should not stay the proceedings. In support of his argument he has referred to the case of -- 'Dhunjibhoy Cowasji Umrigar v. Lisboa' 13 Bom 241 (A), where it was held that </p><p style="text-align: justify;">'A party appealing against a decree, which directs him to pay money, may obtain stay of execution of decree, so far as it directs payment on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted.' </p><p style="text-align: justify;">The appellant's learned advocate contends that under Order 41, Rule 5 the law makes no distinction between money decrees and other kinds of decrees and that in case a judgment-debtor suffers substantial loss on account of execution of the decree the appellate Court should stay the execution. He has referred to the case of -- 'A. A. Khan v. Ameer Khan', AIR 1950 Mys 11 (B) and -- 'Movie Enterprises v. M. S. Periasamy Mudaliar', AIR 1952 Mys 78 (C). In the former case it was held that </p><p style="text-align: justify;">'The Court can stay execution of money decree pending appeal on such security as it deems fit in proper cases in which sufficient cause for a stay has been made out. without requiring in all cases that the decree amount should be deposited in Court.' </p><p style="text-align: justify;">This view was followed in the latter case where it was further observed that </p><p style="text-align: justify;">'Order 41, Rule 5 cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in the matter of stay pending appeal. Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. In this view, it. cannot be contended that a decree directing payment of money should not be stayed unless the decree amount is lodged into Court.' </p><p style="text-align: justify;">4. I respectfully agree with the learned Judges of the Mysore High Court that Order 41, Rule 5 does not make any distinction between money decrees and other decrees and the powers of the appellate Court to order stay of execution of money decree is not fettered in case there is sufficient cause for passing such an order. </p><p style="text-align: justify;">5. In the present case, however, I find that I the appellant has not been able to make out sufficient cause for staying the execution. The first ground, namely, that the appellant has no ready money and that there is a general financial stringency is very vague and unconvincing. The appellant may not be in possession of cash but he should have disclosed his assets and liabilities or he should have given a detailed account of his financial position for this Court to judge whether he had other property sufficient to pay up his decretal amount without any hardship. The mere reference to present financial stringency is to my mind of no avail for staying the execution of the decree. If this ground alone is allowed to prevail then every judgment-debtor would be able to get the execution of the decree stayed in appeal without further proving that such execution would result in substantial loss to him. Under Order 41, Rule 5 'an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order and the section further lays down that execution of a dceree shall not be stayed by reason only of an appeal having been preferred from the decree'. In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause and the appellate Court considers it sufficient for staying the execution. Sub-rule 3 further provides that no order for stay of execution shall be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made. </p><p style="text-align: justify;">6. In the case of -- 'Anandi Prashad v. GovindaBapu', AIR 1934 Nag 160 (D), it was observed bythe learned Judge Vivian Bose A. J. C. that </p><p style="text-align: justify;">'It is not enough merely to repeat the words of.the Code and state that substantial loss willresult; the kind of loss must be specified, details must be given, and the conscience of theCourt must be satisfied that such loss will reallyensue.' </p><p style="text-align: justify;">It was further observed that</p><p style="text-align: justify;">'the words 'substantial loss' cannot mean the ordinary loss to which every judgment-debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of excution as an ordinary rule, it is clear the words 'substantial loss' must mean something in addition to and different from that.' </p><p style="text-align: justify;">7. It is abundantly clear that the appellant is not simply to show the balance of convenience in his favour nor it is sufficient for him to say that no harm would be done to the other party if the execution is stayed. In order to get the substantial loss i.e., it should be a loss more than what should ordinarily result from the execution of the decree in the normal circumstances. The first ground is, therefore, very vague. The second ground alleged by the appellant is equally vague because he has not disclosed what property he has got and why it will not fetch a fair price. </p><p style="text-align: justify;">8. The last ground of the appellant that if heis arrested and sent to civil prison, he will loosehis business and reputation is worth consideration,but for the present there is no material beforethe Court to conclude that the appellant is notin a position to pay the money and that the executing Court will send him to civil prison. Thejudgment-debtor cannot be sent to civil prison atthe mere request of the decree-holder. </p><p style="text-align: justify;">9. Section 51, Civil P. C. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied,-- </p><p style="text-align: justify;">(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-- </p><p style="text-align: justify;"> (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or </p><p style="text-align: justify;"> (ii) has, after the institution of the suit in which the decree was passed, dishonestly, transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.' </p><p style="text-align: justify;">10. The law has thus provided safeguards to protect an honest judgment-debtor who is really unable to pay up the decree. Learned counsel for the respondent has stated that in case the executing Court finds that the judgment-debtor is really not in a position to pay the decretal amount and if it still thinks of sending the appellant to civil prison, the appellant may apply for the stay of the execution and the respondent will have no objection to the stay being granted at that time. This is quite reasonable in my view. The appellant has not been able to make sufficient cause to stay the execution of the order at present and therefore, the order of this Court dated 29-8-1952 is vacated and the application is dismissed. </p><p style="text-align: justify;">Ranawat, J. </p><p style="text-align: justify;">11. I agree. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1954Raj1', 'ratiodecidendi' => '', 'respondent' => 'Pribhu Dayal', 'sub' => 'Civil', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '750379' ) ) $title_for_layout = 'Bansidhar Vs. Pribhu Dayal Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Order 41', (int) 1 => 'Rule 5', (int) 2 => 'Order 41', (int) 3 => 'Rule 5', (int) 4 => 'Mys 11', (int) 5 => 'Order 41', (int) 6 => 'Rule 5', (int) 7 => 'Order 41', (int) 8 => 'Rule 5', (int) 9 => 'Order 41', (int) 10 => 'Rule 5 '', (int) 11 => 'Section 51' ), 'PERSON' => array( (int) 0 => 'Dave', (int) 1 => 'Civil P. C.', (int) 2 => 'Ramji Lal', (int) 3 => 'Kedar Nath', (int) 4 => 'Ladu Ram', (int) 5 => 'Lisboa', (int) 6 => 'A. A. Khan v.', (int) 7 => 'Ameer Khan'', (int) 8 => 'M. S. Periasamy Mudaliar'', (int) 9 => 'Anandi Prashad', (int) 10 => 'Vivian Bose A. J. C.', (int) 11 => 'Civil P. C.' ), 'DATE' => array( (int) 0 => 'today', (int) 1 => '29-8-1952', (int) 2 => 'these days' ), 'ORG' => array( (int) 0 => 'the Court of the Civil Judge', (int) 1 => 'Alwar for Rs', (int) 2 => 'Court', (int) 3 => 'Alwar', (int) 4 => 'Court', (int) 5 => 'Court', (int) 6 => 'Court', (int) 7 => 'AIR', (int) 8 => 'Movie Enterprises', (int) 9 => 'Court', (int) 10 => 'Court', (int) 11 => 'Court', (int) 12 => 'Court', (int) 13 => 'Court', (int) 14 => 'Judges of the Mysore High Court', (int) 15 => 'Court', (int) 16 => 'Court', (int) 17 => 'the Appellate Court', (int) 18 => 'Court', (int) 19 => 'Court', (int) 20 => 'GovindaBapu', (int) 21 => 'AIR 1934 Nag 160', (int) 22 => 'theCourt', (int) 23 => 'Court', (int) 24 => 'Court', (int) 25 => 'Court', (int) 26 => 'Court', (int) 27 => 'Court', (int) 28 => 'Court' ), 'LOC' => array( (int) 0 => 'the District Judge' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'first', (int) 2 => 'first', (int) 3 => 'second' ), 'CARDINAL' => array( (int) 0 => '2', (int) 1 => '29', (int) 2 => '2', (int) 3 => '3', (int) 4 => '3', (int) 5 => 'less than 50,000', (int) 6 => 'three', (int) 7 => '13', (int) 8 => '5.', (int) 9 => '3', (int) 10 => '1', (int) 11 => '2', (int) 12 => '6.', (int) 13 => '8.', (int) 14 => '9', (int) 15 => '10', (int) 16 => '29' ), 'GPE' => array( (int) 0 => 'Alwar' ), 'EVENT' => array( (int) 0 => 'Mys 78' ) ) $desc = array( 'Judgement' => array( 'id' => '750379', 'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 51 - Order 41, Rule 5', 'appealno' => 'Second Appeal No. 237 of 1952', 'appellant' => 'Bansidhar', 'authreffered' => '', 'casename' => 'Bansidhar Vs. Pribhu Dayal', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. The first ground, namely, that the appellant has no ready money and that there is a general financial stringency is very vague and unconvincing. Under Order 41, Rule 5 'an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order and the section further lays down that execution of a dceree shall not be stayed by reason only of an appeal having been preferred from the decree'.In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause and the appellate Court considers it sufficient for staying the execution. Sub-rule 3 further provides that no order for stay of execution shall be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made. the kind of loss must be specified, details must be given, and the conscience of theCourt must be satisfied that such loss will reallyensue. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied,-(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly, transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property;', 'caseanalysis' => null, 'casesref' => 'Anandi Prashad v. GovindaBapu;', 'citingcases' => '', 'counselplain' => ' R.K. Rastogi, Adv.', 'counseldef' => ' R.A. Gupta, Adv.', 'court' => 'Rajasthan', 'court_type' => 'HC', 'decidedon' => '1952-10-22', 'deposition' => 'Application dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Ranawat and; Dave, JJ.', 'judgement' => '<p style="text-align: justify;">Dave, J. </p><p style="text-align: justify;">1. This case comes today for determination of the appellant's application under Order 41, Rule 5, Civil P. C. The respondent had filed a suit against the appellant in the Court of the Civil Judge, Alwar for Rs. 3437/8/- on account of the loss sustained by him for alleged breach of contract committed by the appellant in refusing to take delivery of the goods. The trial Court dismissed the suit but on the plaintiff's appeal to the District Judge, Alwar, a decree for Rs. 2750/- with proportionate cost in both the Courts has been given in his favour. The defendant has, therefore, come here in second appeal and presented a petition for staying the execution of the decree pending the decision of this appeal. On 29-8-1952, notice was issued to the opposite party to show cause why the stay application be not allowed, and an ad interim order to stay the execution was passed on that date. The appellant's learned advocate wants the order to be made absolute while the respondent's learned advocate seriously contests it on the ground that the appellant has sufficient means to pay up the decree and no substantial loss is likely to occur to him. </p><p style="text-align: justify;">2. It appears from the appellant's application dated 29-8-1952, that he has requested for staying the execution on the following grounds: . </p><p style="text-align: justify;">'1. that the appellant has no ready money topay and at the same time payment of theheavy sum is difficult in these days of financial stringency. </p><p style="text-align: justify;"> 2. that if the appellant transfers his property it snail fetch a very low price below the fair one and he will suffer substantial loss. </p><p style="text-align: justify;"> 3. If the appellant is arrested and sent to Civil prison he will lose all his business and reputation.' </p><p style="text-align: justify;">3. In support of his application he has filed an affidavit. The respondent on the other hand has stated in his reply that it is entirely incorrect to say that the appellant is unable to make payment of the decretal amount. It is alleged that the marketable goods and cash in addition to his immovable property and jewellery are in no way less than 50,000 rupees, and that he is carrying on business in Alwar market on a large scale. He has also filed his own affidavit and also three other affidavits of Ramji Lal, Kedar Nath and Ladu Ram to the same effect. He has argued that this is only a money decree against the appellant and this Court should not stay the proceedings. In support of his argument he has referred to the case of -- 'Dhunjibhoy Cowasji Umrigar v. Lisboa' 13 Bom 241 (A), where it was held that </p><p style="text-align: justify;">'A party appealing against a decree, which directs him to pay money, may obtain stay of execution of decree, so far as it directs payment on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted.' </p><p style="text-align: justify;">The appellant's learned advocate contends that under Order 41, Rule 5 the law makes no distinction between money decrees and other kinds of decrees and that in case a judgment-debtor suffers substantial loss on account of execution of the decree the appellate Court should stay the execution. He has referred to the case of -- 'A. A. Khan v. Ameer Khan', AIR 1950 Mys 11 (B) and -- 'Movie Enterprises v. M. S. Periasamy Mudaliar', AIR 1952 Mys 78 (C). In the former case it was held that </p><p style="text-align: justify;">'The Court can stay execution of money decree pending appeal on such security as it deems fit in proper cases in which sufficient cause for a stay has been made out. without requiring in all cases that the decree amount should be deposited in Court.' </p><p style="text-align: justify;">This view was followed in the latter case where it was further observed that </p><p style="text-align: justify;">'Order 41, Rule 5 cannot be read as imposing any limitation that the decrees for payment of money should receive a consideration different from the other decrees in the matter of stay pending appeal. Therefore, there could be no restriction on the discretion of the Court for staying' a decree for payment of money in suitable cases where the Court is satisfied that substantial loss will result to the applicant if no stay is made. In this view, it. cannot be contended that a decree directing payment of money should not be stayed unless the decree amount is lodged into Court.' </p><p style="text-align: justify;">4. I respectfully agree with the learned Judges of the Mysore High Court that Order 41, Rule 5 does not make any distinction between money decrees and other decrees and the powers of the appellate Court to order stay of execution of money decree is not fettered in case there is sufficient cause for passing such an order. </p><p style="text-align: justify;">5. In the present case, however, I find that I the appellant has not been able to make out sufficient cause for staying the execution. The first ground, namely, that the appellant has no ready money and that there is a general financial stringency is very vague and unconvincing. The appellant may not be in possession of cash but he should have disclosed his assets and liabilities or he should have given a detailed account of his financial position for this Court to judge whether he had other property sufficient to pay up his decretal amount without any hardship. The mere reference to present financial stringency is to my mind of no avail for staying the execution of the decree. If this ground alone is allowed to prevail then every judgment-debtor would be able to get the execution of the decree stayed in appeal without further proving that such execution would result in substantial loss to him. Under Order 41, Rule 5 'an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order and the section further lays down that execution of a dceree shall not be stayed by reason only of an appeal having been preferred from the decree'. In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause and the appellate Court considers it sufficient for staying the execution. Sub-rule 3 further provides that no order for stay of execution shall be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made. </p><p style="text-align: justify;">6. In the case of -- 'Anandi Prashad v. GovindaBapu', AIR 1934 Nag 160 (D), it was observed bythe learned Judge Vivian Bose A. J. C. that </p><p style="text-align: justify;">'It is not enough merely to repeat the words of.the Code and state that substantial loss willresult; the kind of loss must be specified, details must be given, and the conscience of theCourt must be satisfied that such loss will reallyensue.' </p><p style="text-align: justify;">It was further observed that</p><p style="text-align: justify;">'the words 'substantial loss' cannot mean the ordinary loss to which every judgment-debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of excution as an ordinary rule, it is clear the words 'substantial loss' must mean something in addition to and different from that.' </p><p style="text-align: justify;">7. It is abundantly clear that the appellant is not simply to show the balance of convenience in his favour nor it is sufficient for him to say that no harm would be done to the other party if the execution is stayed. In order to get the substantial loss i.e., it should be a loss more than what should ordinarily result from the execution of the decree in the normal circumstances. The first ground is, therefore, very vague. The second ground alleged by the appellant is equally vague because he has not disclosed what property he has got and why it will not fetch a fair price. </p><p style="text-align: justify;">8. The last ground of the appellant that if heis arrested and sent to civil prison, he will loosehis business and reputation is worth consideration,but for the present there is no material beforethe Court to conclude that the appellant is notin a position to pay the money and that the executing Court will send him to civil prison. Thejudgment-debtor cannot be sent to civil prison atthe mere request of the decree-holder. </p><p style="text-align: justify;">9. Section 51, Civil P. C. provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless,after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied,-- </p><p style="text-align: justify;">(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-- </p><p style="text-align: justify;"> (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or </p><p style="text-align: justify;"> (ii) has, after the institution of the suit in which the decree was passed, dishonestly, transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.' </p><p style="text-align: justify;">10. The law has thus provided safeguards to protect an honest judgment-debtor who is really unable to pay up the decree. Learned counsel for the respondent has stated that in case the executing Court finds that the judgment-debtor is really not in a position to pay the decretal amount and if it still thinks of sending the appellant to civil prison, the appellant may apply for the stay of the execution and the respondent will have no objection to the stay being granted at that time. This is quite reasonable in my view. The appellant has not been able to make sufficient cause to stay the execution of the order at present and therefore, the order of this Court dated 29-8-1952 is vacated and the application is dismissed. </p><p style="text-align: justify;">Ranawat, J. </p><p style="text-align: justify;">11. I agree. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1954Raj1', 'ratiodecidendi' => '', 'respondent' => 'Pribhu Dayal', 'sub' => 'Civil', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '750379' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Order 41, Rule 5, Order 41, Rule 5, Mys 11, Order 41, Rule 5, Order 41, Rule 5, Order 41, Rule 5 ', Section 51
PERSON: Dave, Civil P. C., Ramji Lal, Kedar Nath, Ladu Ram, Lisboa, A. A. Khan v., Ameer Khan', M. S. Periasamy Mudaliar', Anandi Prashad, Vivian Bose A. J. C., Civil P. C.
DATE: today, 29-8-1952, these days
ORG: the Court of the Civil Judge, Alwar for Rs, Court, Alwar, Court, Court, Court, AIR, Movie Enterprises, Court, Court, Court, Court, Court, Judges of the Mysore High Court, Court, Court, the Appellate Court, Court, Court, GovindaBapu, AIR 1934 Nag 160, theCourt, Court, Court, Court, Court, Court, Court
LOC: the District Judge
ORDINAL: second, first, first, second
CARDINAL: 2, 29, 2, 3, 3, less than 50,000, three, 13, 5., 3, 1, 2, 6., 8., 9, 10, 29
GPE: Alwar
EVENT: Mys 78