JUDGMENT B.K. NAYAK, J. – In this writ petition the petitioner challenges the legality and propriety of the order dated 26.06.2013 under Annexure-6 passed by the learned District Judge, Nayagarh in Election Appeal No.3 of 2013 staying the operation of the judgment dated 24.4.2013 passed by the learned Civil Judge (Senior Division), Nayagarh in Election Misc. Case No.15 of 2012. 2. The factual matrix is as follows: (A) The petitioner being the elected Panchayat Smiti Member of Tumadi Gram Panchayat in the district of Nayagarh contested the election for the post of Chairman, Daspalla Panchayat Samiti against his rival candidate, opposite party no.3, who was declared elected. The petitioner filed Election Misc. Case No.15 of 2012 before the learned Civil Judge (Senior Division), Nayagarh under Section 44-A of the Orissa Panchayat Samiti Act,1959 challenging the election of opposite party no.3 on the ground that the post of Chairman of the Samiti was reserved for OBC category and that opposite party no.3 even though does not belong to OBC category, produced a fabricated caste certificate and contested the election. The Civil Judge (Senior Division) by his judgment dated 24.4.2013 (Annexure-1) found that opposite party no.3 does not belong to OBC category and as such was disqualified to contest the election and while declaring his election void, further declared the petitioner elected to the post of Chairman of the Panchayat Samiti. (B) As per the above judgment, the Collector, Nayagarhopposite party no.1 vide notification no.538 dated 26.4.3013 under Anexure-2 declared the petitioner as the Chairman of Daspalla Panchayat Samiti. In pursuance of the notification under Anenxure-2, the petitioner assumed charge as Chairman of the Samiti, as is evident from the letter under Annexure-3 addressed by the B.D.O., Daspalla to the Collector, Nayagarh. (C) Challenging the judgment passed by the learned Civil Judge (Senior Division), Nayagarh in Election Misc. Case No.15 of 2012, opposite party no.3 filed Election Appeal No.3 of 2013 before the learned District Judge, Nayagarh. Along with the appeal memo, opposite party no.3 also filed a petition to stay the operation of the judgment passed by the learned Civil Judge (Senior Division), so also the notification under Annexure-2 issued by the Collector, Nayagarh. (D) By the impugned order dated 26.06.2013 (Annexure-6), the learned District Judge has stayed the operation of the judgment passed in the Election Misc. Case no.15 of 2012 by the Civil Judge (Senior Division), Naygarh. 3. (D) By the impugned order dated 26.06.2013 (Annexure-6), the learned District Judge has stayed the operation of the judgment passed in the Election Misc. Case no.15 of 2012 by the Civil Judge (Senior Division), Naygarh. 3. At this stage, it is appropriate to notice certain further developments. While filing the Election Appeal, opposite party no.3 also challenged the notification dated 26.4.2013 (Annexure-2) before this Court by filing W.P.(C) No.10229 of 2013. By order dated 16.05.2013 this Court after hearing counsel for opposite party no.3 and the present petitioner passed interim order staying operation of the said notification dated 26.4.2013 (Annexure-2). The present petitioner filed Writ Appeal No.228 of 2013 challenging the interim stay order dated 16.05.2013 passed by the learned Single Judge in W.P.(C) No.10229 of 2013. In the meantime, the learned District Judge, Nayagarh passed the present impugned order of stay dated 26.6.2013 of the judgment passed in Election Misc. Case. The Division Bench dismissed the writ appeal as well as W.P.(C) No.10229 of 2013 as infructuous by order dated 01.07.2013 with the following observation : “ xx xx xx It is brought to our notice that the learned District Judge, Nayagarh on 26.06.2013 in Election Appeal No.3 of 2013 has stayed the operation of the judgment passed by the learned Civil Judge (Senior Division), Nayagarh in Election Misc. Case No.15 of 2012 till disposal of the appeal. A photo copy of the order dated 26.06.2013 of the learned District Judge, Nayagarh in Election Appeal No.3 of 2013 is produced before us. In view of above, the writ appeal as well as the writ petition has become virtually infructuous. Therefore, the writ appeal as well as the writ petition stands dismissed as infructuous. However, we direct the learned District Judge, Nayagarh to dispose of the Election Appeal No.3 of 2013 as expeditiously as possible preferably within a period of two months from the date of receipt of a certified copy of this order on its own merit without being influenced by any of the observation made by this Court either in the writ petition or in the writ appeal.” 4. The learned counsel for the petitioner raised only one contention that the appellate court (District Judge, Nayagarh) has no power to pass an order of stay inasmuch as neither Section 44-Q nor any other provision of the Orissa Panchayat Samiti Act,1959 or the Rules framed thereunder confers such power. The learned counsel for the petitioner raised only one contention that the appellate court (District Judge, Nayagarh) has no power to pass an order of stay inasmuch as neither Section 44-Q nor any other provision of the Orissa Panchayat Samiti Act,1959 or the Rules framed thereunder confers such power. It is submitted that the Election Tribunal and the appellate court under the Panchayat Samiti Act cannot travel beyond the provision of the Statute in this respect. Refuting such contention, learned counsel for opposite party no.3 submits that every court/Tribunal has the trappings of a civil court and would be deemed to have the ancillary power to pass any interim order during the pendency of the main proceeding. In particular, it is submitted that an appellate court under a special statute has the implied/ancillary power to grant stay even if such power has not been specifically conferred by the statute. 5. The Division Bench dismissed the Writ Appeal No.228 of 2013 without interfering with the order of stay under Annexure-2 passed by the learned Single Judge in W.P.(C) No.10229 of 2013 because of the fact that by then the learned District Judge, Nayagarh had passed the impugned order of stay of operation of the judgment passed in the election misc. case. Though the Division Bench was not considering the legality and propriety of the stay order passed by the learned District Judge yet they thought it fit to direct the District Judge to dispose of the Election Appeal within two months. In the meantime, one month is already over, and for that matter, the stay order passed by the learned District Judge will continue for one more month only. In the circumstances, I desist from considering the merits of the contentions raised by the learned counsel for the parties. 6. As to the merits of the impugned stay order passed by the learned District Judge it is seen that no reason at all has been given by the learned District Judge except saying that since the appeal has been filed challenging the judgment of the Civil Judge (Senior Division), Nayagarh in the Election Misc. Case, it would be just and proper to grant stay of operation of the impugned judgment till disposal of the appeal. Stay of an impugned order by the higher court is never automatic. Case, it would be just and proper to grant stay of operation of the impugned judgment till disposal of the appeal. Stay of an impugned order by the higher court is never automatic. While considering the question of stay, the court has to strike a balance between the comparative convenience and inconvenience of the parties and also examine the prima facie merits of the impugned order/judgment. No such thing has been done by the learned District Judge in the present case. The Election Appeal is going to be disposed of within a month or so in view of the direction of the Division Bench in the writ appeal. While setting aside the election of opposite party no.3 the learned Civil Judge (Senior Division) has also declared the petitioner elected as the Chairman of the Panchayat Samiti. It would, in the circumstances, be appropriate that neither the petitioner nor opposite party no.3 is allowed to function as the Chairman of Panchayat Samiti, Daspalla till disposal of the Election Appeal by the learned District Judge, Nayagarh and this Court directs accordingly. The impugned order of stay (Annexure-6) stands modified accordingly. The writ petition is thus disposed of. Petition disposed of.