Heard Sri Siddhartha Srivastava, counsel for the petitioner and Sri Pavan Kisore on behalf of respondents No.5 and 6.
Petitioner is aggrieved by the order dated 31.3.2014 passed by the appellate court disposing of application paper No.13-Ga in Civil Appeal No.95 of 2013 (Nav Kalpna Sahkari Avas Samit and another Vs. Smt. Kumkum and others).
It appears that the petitioner had instituted a suit for a decree of permanent injunction. The said suit was decreed vide judgment and order dated 20.5.2013 restraining the defendants to the suit from interfering in the possession and ownership of the petitioner over the suit property.
Aggrieved by it defendants No.5 and 6 preferred the above appeal.
The appellate court by the impugned order, pending appeal, has stayed the operation of the aforesaid judgment, order and decree vide order dated 31.3.2014 till the disposal of the appeal for which 1.5.2014 has been fixed as the next date.
In challenging the above order the submission of Sri Srivastava is that in exercise of power under Order 41 Rule 5 C.P.C. the appellate court has no jurisdiction to stay the operation of the judgment, order and decree rather it can only stay execution of the decree.
The argument advanced appears to be attractive but on a closure scrutiny I find that the stay of operation of the judgment, order and decree has the same effect as stay of execution of the decree. Moreover, the court below has the jurisdiction to stay the operation and effect of the order which is under challenge in appeal before it in exercise of its inherent power so that justice may be done to parties. Thus, the power of stay of the operation of the judgment, order and decree may not be technically available under Order 41 Rule 5 C.P.C. but is traceable to same provision in law i.e. Section 151 C.P.C.
It is pertinent to mention that wherever any judgment, order and decree is likely to visit a party with civil consequences and the same is under challenge, normally pending adjudication it is always better to stay the effect and operation of such an order. Thus, the appellate court in exercise of its inherent power has not committed any error in passing the impugned order.
The said impugned order is only an interlocutory order which is operative only till the disposal of the appeal for which a date has been fixed. It does not has the effect of deciding any substantive rights of the parties which may require any interference in exercise of extra ordinary jurisdiction of this Court.
In view of the above, I find no merit in the petition and it is accordingly dismissed with no orders as to costs.
The writ petition is dismissed.
Order Date :- 23.4.2014 Brijesh