Judgment Binod Kumar Roy, J. 1. The plaintiffs have come up before this Court against an order staying further proceedings of the petitioners suit filed about ten years age at the final decree stage passed on a petition filed by the opposite parties as a road block in the way of the executability of the preliminary decree dated 10-4-1985. 2. The relevant facts lie in a very narrow compass. 3. The suit in question was filed by the plaintiffs for partition claiming 2/3rd share in the properties in question. The defendants took up a defence that the plaintiffs had lost title as they had competed their exclusive title by virtue of the ouster of the plaintiffs. The suit was decreed upholding the plaintiffs claim and a preliminary decree was passed on 10-4-1985. Against that decree a First Appeal is pending before this Hon ble Court. The plaintiff filed an application for preparation of a final decree in the suit. The defendants moved this court in the First Appeal for staying further proceeding of the suit but this court vide its order dated 9-9-1986 instead of granting stay disposed of that petition observing to the effect that the defendants should raise the points in his petition before the trial court. Thereafter, the petitioners deposited the commissioners fee for carving out takhta by an advocate Commissioner and for that purpose they deposited a sum of rs.200/- and a commissioner was also appointed. The defendants put in an application for staying further proceeding on the ground of pendency of the first appeal before this court. The petitioners resisted that prayer on the ground that pendency of appeal is no ground for staying preparation of a final decree and that the defendants case of previous partition and ouster having been found to be false they will not put to any loss if the commissioner proceed with the process of carving cut the shares. By the impugned order, the court below passed the impugned order staying its proceeding solely on the ground that an appeal is pending against a preliminary decree. 4. Mr. Bhagat, learned counsel for the petitioners argued that the court below has completely misconceived the legal position emerging out of the pendency of an appeal against a preliminary decree in a suit for partition and non grant of stay by the appellate court. 4. Mr. Bhagat, learned counsel for the petitioners argued that the court below has completely misconceived the legal position emerging out of the pendency of an appeal against a preliminary decree in a suit for partition and non grant of stay by the appellate court. He pointed out that by the preparation of a final decree, the defendants were not going to suffer any irreparable loss as the process of actual delivery of possession could have arisen only when the final decree is put in execution. He accordingly submitted that the court has acted with material irregularity in exercise of its jurisdiction in staying its own proceedings. 5. Mr. Kumar Brajendra Nath on the other hand contended that in view of the pendency of the First Appeal and the directions issued by this court in that appeal by its order dated 9-9-1985, the court has correctly passed an order staying its further proceeding and in doing so it had not acted illegally and/or with material irregularity in exercise of its jurisdiction. 6. In the case of State of U. P. V/s. Md. Nooh, AIR 1958 SC 86 (Paragraph 13)it has been laid down that : "there is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. " the legislature while enacting order XLI Rule 5 (i) has laid down that: an appeal shall not operate as a stay of proceedings under a decree or order. " It is thus clear that merely because an appeal is pending further proceedings of the suit should not be stayed. 7 By an order dated 29-4-1986, the court below after having applied its mind passed an order for appointment of a pleader commissioner observing that the prayer for stay would be considered later on.1 also find that in the order dated 9-9-1986 this court has merely observed to the effect that the court below will apply its mind to the question of desirability of staying the further proceeding of the suit before passing an order of appointment of pleader commissioner. The court below has also not considered the provision of Sec.144 of the code, which provides restitution and the further glaring fact that the defendants shall not be put to any substantial loss, if shares are prepared by the Commissioner. Accordingly, there is no merit in the submission of the learned counsel appearing for the opposite parties that since the matter is pending in appeal before the court, the court below was justified in staying its further proceeding. 8. In my view the stay order in question amounts to grant of an injunction. My view finds support from the decision of the Supreme Court in mulraj V/s. Muni Raghunathji, AIR 1967 SC 1386 , wherein it was laid down by the apex court to the effect that the stay order in effect is more or less in the same position as an order of injunction. In my view thus while passing the said order in question the court below should have also considered not only the question of prima facie case but also other questions namely balance of convenience and irreparable loss, which has clearly been ignored by it. The court below has overlooked that the plaintiffs were entitled to have usufructs of their decree. In the instant case nothing could be pointed out by Mr. Nath as to what irreparable injury the defendants would sustain if the proceedings are allowed to continue and terminated by final decree. 9. A division bench of this court in M. A. No.99 of 1971 (Laloo Rai and another V/s. Sachita Missir) disposed of on 15tb March, 1973, while allowing their appeal with costs filed by defendant Nos.8 and 20 cf a title suit filed in 1970 who were also restrained by grant of an ad-interim injunction from proceeding further with the preparation of a final decree of a partition suit filed in 1956 held as follows : "while passing the order of injunction a court has to satisfy itself about three things (i) whether the purchaser who claims the injunction has got a prima facie case (ii) whether balance of convenience is in his favour and (iii) whether he will suffer irreparable injury. It is now well settled that when the loss can be compensated in money the injury is not irreparable. It is now well settled that when the loss can be compensated in money the injury is not irreparable. Even if the final decree is prepared and parties get possession according to it, the will come back to the plaintiffs in case of their success in the suit. They will also get compensation for the period they are kept out of possession. X X X X "it has been contended by Mr. Premlal, learned counsel for the plaintiff-respondent no.1 that the appeal is not maintenable as the order passed by the court below was under Sec.151 of the civil Procedure Code and not an order under Order 39 Rule 1 or 2 of the code. Even if that be so, in our opinion, this is a fit case where that order should be set aside in exercise of the revisional jurisdiction. An order of temporary injunct;on passed without considering the aforesaid three principles suffers from illegality and material irregularity in exercise of jurisdiction. " 10. It has been settled also by the apex court in Civil Appeal No.3294 of 1988 Hazrat Surat Sah Urdu Education Society V/s. Abdul Saheb, disposed of on 16th November, 1988 and reported in 1988 (4) judgment 232 to the effect that in interim injunction can be refused if a party claiming it fails to make out any of the aforesaid three ingredients the court will be justified in declining to issue injunction in this case nothing could be pointed out by Mr. Nath as to what irreparable injury the defendants would sustain if the proceeding are allowed to continue and terminated by a final decree. 11. In the result the impugned order is set aside and the Civil Revision application is allowed with costs. Hearing fee Rs.150/-. Revision allowed.