Going by the plain meaning of Order XLI Rule 5,
it provides for only stay of the proceedings
under a decree or stay of execution of the
decree. The provision does not empower the
appellate court to stay the operation of the
judgment. Stay of operation of the judgment is
not the same as staying the operation of the
proceedings under a decree or staying the
execution of a decree. An order staying the
operation of the judgment will amount to staying
the findings in the judgment, which cannot be
done at the stage of admission.
6. In the impugned order, the appellate
court has indicated the reasons for granting the
order of stay. Therefore, I do not find any
force in the submission that the order is bad for
application of mind and lack of reasons. At the
same time, even on being convinced of the reasons
for granting stay, the appellate court could have
stayed only the proceedings under the decree or
execution of the decree and not, the operation of
the judgment.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR.JUSTICE V.G.ARUN
OP(C) NO. 963 OF 2021
RAVEENDRAN Vs LALITHA
Dated this the 1st day of November, 2021
The petitioner was the plaintiff in
O.S.No.37 of 2014 on the files of the Principal
Munsiff's Court, Kollam. The prayer in the suit
was for a permanent prohibitory injunction
restraining the respondents/defendants from
trespassing into plaint B schedule pathway and
from taking vehicles through the pathway or
parking vehicles therein. The suit was decreed
with cost. Aggrieved, the second respondent filed
appeal (AS No.86 of 2020) before the Additional
District Court-IV, Kollam. While admitting the
appeal, the appellate court passed Ext.P3 order,
staying the operation of the decree and judgment
till the disposal of the appeal.
2. When this original petition came up for
admission, it was pointed out that the petitioner
had filed I.A.No.3 of 2021 before the appellate
court seeking review of Ext.P3 order. Therefore,
by order dated 25.08.2021, the appellate court
was directed to pass orders on that interlocutory
application. By Ext.P4 order, the appellate court
dismissed I.A.No.3 of 2021, finding that on the
facts of the case, an order staying the operation
of the judgment and decree is highly essential.
3. Adv.H.Vishnudas, learned Counsel for the
petitioner assailed Ext.P3 order by contending
that Order XLI Rule 5 of the Code of Civil
Procedure, empowers the appellate court to only
stay the proceedings and execution of a decree
and the court is not clothed with the power to
stay the operation of the judgment and decree. It
is contended that as per Order XLI Rule 5, mere
filing of an appeal shall not operate as a stay
of proceedings under a decree, except so far as
the appellate court may order and further that,
execution of a decree shall not be stayed by
reason of an appeal having been preferred. Even
stay of execution of a decree can only be for
sufficient cause. According to the learned
Counsel, the caption “stay of proceedings and of
execution” to Order XLI Rule 5 clearly indicates
the intention of the legislature. Going by the
provision, the appellate court can do nothing
other than staying the proceedings under the
decree or staying execution of the decree.
Moreover, stay of operation of a judgment will
have the effect of relegating the parties to the
pre-suit stage. To support the contentions,
reliance is placed on the following decisions;
Sulochana Peter v. Chellamma Swarnamma [2011
(1) KLT 93], Harish Premshankar Bhatt and another
v Kailasbhai K. Sabaria [2015 KHC 2887].
4. It is contended that the impugned Ext.P3
order was passed without considering these
crucial aspects and the precedents. Even though,
the fundamental flaw was brought to the notice of
the appellate court by filing I.A.No.3 of 2021,
the learned Judge refused to review the order.
5. Order XLI Rule 5 of CPC reads as under;
“5. Stay by Appellate Court.—(1) An
appeal shall not operate as a stay of
proceedings under a decree or order appealed
from except so far as the Appellate Court
may order, nor shall execution of a decree
be stayed by reason only of an appeal having
been preferred from the decree; but the
Appellate Court may for sufficient cause
order stay of execution of such decree.
3[Explanation.—An order by the Appellate
Court for the stay of execution of the
decree shall be effective from the date of
the communication of such order to the Court
of first instance, but an affidavit sworn by
the appellant, based on his personal
knowledge, stating that an order for the
stay of execution of the decree has been
made by the Appellate Court shall, pending
the receipt from the Appellate Court of the
order for the stay of execution or any order
to the contrary, be acted upon by the Court
of first instance.]
(2) Stay by Court which passed the decree.—
Where an application is made for stay of
execution of an appealable decree before the
expiration of the time allowed for appealing
therefrom, the Court which passed the decree
may on sufficient cause being shown order
the execution to be stayed.
(3) No order for stay of execution shall be
made under sub-rule (1) or sub-rule (2)
unless the Court making it is satisfied—
(a) that substantial loss may result to the
party applying for stay of execution unless
the order is made;
(b) that the application has been made
without unreasonable delay; and
(c) that security has been given by the
applicant for the due performance of such
decree or order as may ultimately be binding
upon him.
(4) [Subject to the provision of sub-rule
(3)], the Court may make an ex parte order
for stay of execution pending the hearing of
the application.
[(5) Notwithstanding anything contained in
the foregoing sub-rules, where the appellant
fails to make the deposit or furnish the
security specified in sub-rule (3) of rule
1, the Court shall not make an order staying
the execution of the decree.”
Going by the plain meaning of Order XLI Rule 5,
it provides for only stay of the proceedings
under a decree or stay of execution of the
decree. The provision does not empower the
appellate court to stay the operation of the
judgment. Stay of operation of the judgment is
not the same as staying the operation of the
proceedings under a decree or staying the
execution of a decree. An order staying the
operation of the judgment will amount to staying
the findings in the judgment, which cannot be
done at the stage of admission.
6. In the impugned order, the appellate
court has indicated the reasons for granting the
order of stay. Therefore, I do not find any
force in the submission that the order is bad for
application of mind and lack of reasons. At the
same time, even on being convinced of the reasons
for granting stay, the appellate court could have
stayed only the proceedings under the decree or
execution of the decree and not, the operation of
the judgment.
7. Pursuant to the order of this Court, the
appellate court considered and dismissed the
review application (I.A.No.3 of 2021), relying on
Order 41 Rule 33 of CPC. It is pertinent to note
that the appellate court is not expected to
exercise the power under Order 41 Rule 33 CPC,
while admitting an appeal. Such power can be
exercised while considering the appeal on merits.
The position needs no further clarification in
the light of the dictum laid down in Sulochana
Peter, the relevant portion of which is extracted
hereunder;
“The power enjoined under such Rule
cannot be invoked by the Appellate Court
to admit an appeal, which is found not
entertainable. Needless to point out,
invoking the powers under R.33 of O. XLI
of the Code for exercise of the
extraordinary powers vested with the
Appellate Court would come into play, if
so satisfied by the facts presented, only
at the stage of consideration of the
appeal on merits, at the time or hearing,
but not before, at any rate, not at the
stage of considering or determining the
entertainability and admissibility of an
appeal.”
In the result, the original petition is
allowed, Exts.P3 and P7 orders are set aside and
the appellate court is directed to consider the
application for stay (I.A.No.1 of 2020) afresh
and to pass orders thereon, after affording an
opportunity of hearing to the parties.
Sd/-
V.G.ARUN
JUDGE
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