JUDGMENT Sudhir Agarwal and Brijesh Kumar Srivastava-II, JJ. This is an application under Order 41 Rule 5 CPC read with Section 151 CPC, praying for stay of the effect and operation of the judgment dated 05.05.2005 passed in O.S. No. 513 of 1989 by Civil Judge, (Senior Division), Allahabad. 2. The appeal under section 96 of Code of Civil Procedure has arisen from the judgment dated 05.05.2015 and decree prepared on 15.05.2015 in Original Suit No. 503 of 1989. 3. The dispute relates to the office of Shankaracharya at Jyotirmath Badrikashram. After almost 26 years, the Trial Court i.e. Civil Judge (Senior Division), Allahabad, finally adjudicated the aforesaid suit having wide impact upon substantial section of people, having belief in Hindu religion. 4. When this appeal initially came up before this Court on 26.5.2015, both the parties agreed that looking to seriousness of issues raised in this appeal, the appeal itself be expeditiously heard and decided and parties assured the Court that they shall get paper books prepared very expeditiously. On their request, the Court passed the following order: "1. Heard Sri V.B. Upadhyay and Sri Ravi Kant, learned Senior Advocates, assisted by several counsels including Sri V.D. Ojha, Sri Manish Goyal, and Sri Ved Mani Tiwari, for the appellant. Notice on behalf of plaintiff-respondent was served upon Sri S.P.S. Parmar, Advocate. Sri Shashi Nandan, Sri W.H. Khan and Sri B.P. Singh, learned Senior Advocates, assisted by Sri Anoop Trivedi, Sri Udayan Nandan, Sri A.B. Singhal, Sri Vivek Kumar Singh and Smt. Swati Agarwal have appeared for respondent. 2. Admit. 3. Since the respondent is already represented though counsels, there is no need to issue notice. 4. Looking to the nature of dispute and also the earlier order passed by the Apex Court by which the matter was remanded to Trial Court for deciding the suit expeditiously, we are of the view that this is a matter which should be decided expeditiously. 5. Let the record of Court below be summoned through Special Messenger. Steps shall be taken by appellant within three days. 6. Parties thereafter shall take steps to get the paper-book prepared and the same shall be filed within five weeks. 7. Learned counsels for parties agreed that this matter should be decided expeditiously and they request to have this matter for final hearing at an early date. 8. Steps shall be taken by appellant within three days. 6. Parties thereafter shall take steps to get the paper-book prepared and the same shall be filed within five weeks. 7. Learned counsels for parties agreed that this matter should be decided expeditiously and they request to have this matter for final hearing at an early date. 8. List this appeal for final hearing on 14.07.2015." (emphasis added) 5. Pursuant thereto, Lower Court record was received in the office on 03.06.2015. Office submitted report on 13.07.2015 that despite receipt of lower Court record on 03.06.2015, parties have not filed their respective paper books. The appeal came up before Court on 14.07.2015 on which date, the plaintiff respondent appearing through Sri Anoop Trivedi, Advocate, filed counter affidavit, opposing stay application. As prayed, time was granted to appellant to file rejoinder affidavit. 6. The appeal then came up before Court on 21.07.2015 along with report of the office that none of the parties has submitted paper books as yet. On 21.07.2015 counsel for applicant-appellant filed rejoinder affidavit. On the request of counsel appearing for plaintiff respondent, the matter was directed to be listed on 27.07.2015. 7. In the meantime, on behalf of appellant, Misc. Application No. 221328 of 2015 was filed, requesting six weeks' time for preparation of paper books. However, this application was not pressed at any point of time and Court was given an impression that process of preparation of paper books is going on. Paper books still having not been filed, report to this effect was submitted by office on 25.07.2015 and when matter came up on 27.07.2015, both the parties requested to have it on 30.07.2015 for disposal of ad interim application. The office submitted report dated 29.07.2015 that paper books still have not been filed. 8. Then this matter came up on 03.08.2015 when counsel for respondent stated that paper books are ready and Registry may be directed to accept the same. Thereupon counsel for the appellant stated that appellant's paper books are not ready. However, the parties jointly agreed that since one set of paper books are already there, hearing may start and in the meantime, the appellant's paper books shall also be filed. On joint request of the parties, the Court directed this matter to be listed/put up on 05.08.2015. 9. However, the parties jointly agreed that since one set of paper books are already there, hearing may start and in the meantime, the appellant's paper books shall also be filed. On joint request of the parties, the Court directed this matter to be listed/put up on 05.08.2015. 9. On 05.08.2015 Sri Manish Goel, counsel for appellant commenced his argument with the understanding that appeal is being heard finally. Arguments continued on 6.8.2015, 10.8.23015, 13.8.2015, 17.8.2015 and 18.8.2015. On 18.8.2015 after addressing the Court assailing findings of Court below on Issues no. 16 and 20, counsel for the appellant requested the Court to pass order on stay application since hearing of appeal will take time. He submitted that on the question of res judicata, suit in question prima facie was barred by judgment and decree dated 15.01.1970 passed in Original Suit No. 36 of 1965, which was between Shantanand and Swami Krishna Bodh Ashram, therefore, the defendant appellant should be allowed to continue and/or the parties be directed to maintain status quo. He contended that after judgment of Trial Court, the office is vacant and nobody is able to function as a result whereof, entire property of Jyotirpeeth Badri Nath Badrikashram is lying unmanaged or mismanaged. 10. Sri Goel pointed out that during pendency of suit, interim injunction was granted by Trial Court on 22.02.1999, which was set aside by this Court in Writ Petition no. 24085 of 2000 decided on 23.01.2004. Thereagainst Special Leave Petition no. 8649 of 2004 (Civil Appeal No. 4612 of 2005) was filed, wherein, the Apex Court stayed judgment of this Court on 23.08.2004. Ultimately it disposed of appeal vide judgment dated 22.08.2005 and relevant observations and directions are as under: "After hearing the parties for some time, we are of the view of the view that the High Court was fully justified in observing that the suit itself deserves to be disposed of as early as possible, having regard to the nature of the dispute involved. We, therefore, dispose of these appeals with the direction to the trial court to hear the suit day to day, and dispose of the suit preferably within a period of six months. The trial court will not grant unnecessary adjournments. We have also impressed upon the parties not to seek avoidable adjournments since that may delay the disposal of the suit. The trial court will not grant unnecessary adjournments. We have also impressed upon the parties not to seek avoidable adjournments since that may delay the disposal of the suit. The trial court will proceed with the trial day to day, and if necessary, the High Court may on its administrative side pass appropriate directions, if necessary. During the pendency of the suit, the parties will maintain status quo as on 22nd May, 2000. Should any dispute arise as to who was functioning as Shankaracharya of Jyotish Peetha on that date, it will be open to the trial court to decide that question. The trial court will decide all issues and will not permit any interference by third parties. In deciding the suit, the trial court will not be influenced by any observation made by the trial court, the Appellate court or the High Court in this proceeding. The appeals are disposed of in the above terms. No costs." 11. It is said that pursuant thereto, the parties have been maintaining status quo throughout and similar order should be parsed at this stage also. Having said so, Sri Goel also informed the Court that paper books of appellant are in the process of printing and will be submitted to Court within a shortwhile. He drew our attention to Court's order dated 26.5.2015 passed on ad interim injunction application which reads as under: "1. Put up on 14.07.2015. 2. If the appeal, for one other other reason, is not decided expeditiously, the parties shall be at liberty to address the Court on this application. 3. In the meantime, respondent is at liberty to file objection, if any." 12. Sri Goel said, since appeal is not being decided expeditiously and liberty was given to the parties to address the Court on stay application, therefore he is pressing application which should be disposed of. 13. It is really surprising that on the one hand, appellant commenced argument after paper books of respondent was filed running in eight volumes but all of a sudden, stay application is sought to be pressed during course of hearing. We found it our duty to dispose of application and, therefore, called upon Sri Shashi Nandan, Senior Advocate appearing for plaintiff respondent to address on the question of stay application. 14. He advanced his submission on the question of stay partly on 18.08.2015, 19.08.2015 and today. We found it our duty to dispose of application and, therefore, called upon Sri Shashi Nandan, Senior Advocate appearing for plaintiff respondent to address on the question of stay application. 14. He advanced his submission on the question of stay partly on 18.08.2015, 19.08.2015 and today. Sri Shashi Nandan submitted that once parties have already agreed for early hearing of the matter and stay application was not pressed by appellant when appeal came up for admission on 26.5.2015, there is no justification for appellant subsequently to press for stay. He submits that it is the appellant himself who has not filed paper books and has attempted to delay hearing and cannot be allowed to take advantage of his own wrongs. On pleadings in the suit, he submitted that plaintiff has not founded his rights derived from Krishna Bodh Ashram but has set up his claim independently and, therefore, judgement in O.S. No. 36 of 1965 cannot operate as res judicata and the Court below has rightly answered issue no. 16 against the appellant. He further submitted that there is no abuse of process of law by filing second suit and the entire submissions are fallacious. 15. We shall deal with the arguments of both the sides in detail whenever occasion will arise. 16. The application has been filed under Order 41 Rule 5 CPC. It empowers the Court to pass an order, staying execution of decree in appeal, provided sufficient cause is shown by the appellant. Sub-rule (3) of Rule 5, Order 41 CPC however, prohibits the grant of stay of execution of decree unless the C9ourt is satisfied to certain conditions. Order 41, Rule 5(1) and (3) reads as under: "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. 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 country, be acted upon by the court of first instance. (2)....................... (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 as may ultimately be binding upon him." 17. In the present case so far as unreasonable delay is concerned, we find that at the time of admission on 26.05.2015, learned counsel, who was appearing on behalf of appellant, at that time, did not address on stay application and, in fact, despite specifically asked by this Court he declined to address and instead stated that plaintiff is agreeable that appeal itself be heard finally at an early date. We fixed a date for hearing, subject to preparation of paper books as per Rules. Almost 2½ months had passed since then but the appellant has chosen not to file paper books, though respondent has already discharged his duty and filed paper books. In our view, therefore, pressing of stay application at this stage does not satisfy requirement of Order 41 Rule 5 (3) (b) CPC at all. Moreover, even nothing has been addressed to us as to how appellant would suffer substantial loss in case execution of decree is not stayed. Both these conditions i.e. Sub rule (3) (a) and (b) of Rule 5 Order 41 are required to be satisfied, which in our view are not satisfied. 18. We have also examined the matter as to whether request of the appellant for grant of stay in terms of granting ad interim injunction can be accepted. Both these conditions i.e. Sub rule (3) (a) and (b) of Rule 5 Order 41 are required to be satisfied, which in our view are not satisfied. 18. We have also examined the matter as to whether request of the appellant for grant of stay in terms of granting ad interim injunction can be accepted. It is not disputed by the parties, while granting ad interim injunction in appeal, the Court has to follow the principles as are provided in Order 39 Rule 1 C.P.C., meaning thereby, all the three conditions, namely, prima facie case, balance of convenience and irreparable loss must be satisfied. 19. In Kashi Math Samsthan Vs. Srimad Sudhindra Thirtha Swamy, AIR 2010 SC 296 , a similar situation was up for consideration. The dispute related to Kashi Math Sansthan established sometime between 14th and 15th Century AD. Dispute about the office of Mathadhipati came to be raised in the suit filed in the Court of Additional District Judge, Tirupati. On the injunction application filed before Trial Court, order of status quo was passed which continued throughout. There was a counter claim also on behalf of the defendant Srimad Sudhindra Teerth Swami. The Trial Court dismissed the suit but allowed counter claim of Srimad Sudhindra Teerth Swami, granting him decree of permanent injunction, directing plaintiff who was appellant no.2 in the Supreme Court to hand over articles in his possession. Plaintiffs came in two civil appeals under section 96 CPC before High Court and ad interim injunction applications were also filed, seeking stay of judgment and decree. The High Court dismissed both the applications. It directed that execution of decree granted by Trial Court shall be subject to final outcome of appeals. Thereafter, the matter was taken to Supreme Court. It is in this context the Supreme Court said that in order to obtain an order of injunction in appeal also, a party who seeks such injunction has to show a prima facie case, to go for trial; balance of convenience in his favour and that he will suffer irreparable loss and injury if injunction is not granted. It is in this context the Supreme Court said that in order to obtain an order of injunction in appeal also, a party who seeks such injunction has to show a prima facie case, to go for trial; balance of convenience in his favour and that he will suffer irreparable loss and injury if injunction is not granted. The Court further said as under: "But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted" 20. Learned counsel for appellant in order to make out prima facie case contended that on the issue of res judiciata, findings of Trial Court are erroneous and incorrect; and since suit in question, itself was not maintainable, and barred by Principle of res judicata under Section 11 of Code of Civil Procedure, there was no occasion for Trial Court to consider other issues. Sri Goel drew our attention to plaint, written statement and judgment in Original Suit No. 36 of 1965 which was between Shanta Nand and Krishna Bodh Ashram. The suit was decreed on 15.1.1970. Krishna Bodh Ashram thereafter preferred appeal no. 59 of 1970 but died as a result whereof, the appeal abated. Thereafter, plaintiff respondent filed a suit in Madhya Pradesh High Court being O.S. No. 1A of 1974 at Sheoni which was subsequently transferred to Allahabad vide judgment reported in AIR 1979 MP 50 , Jagad. Shri Shankarcharya Vs. Ram Ji Tripathi. He urged that the plaintiff respondent has claimed office of Shankaracharya at Jyotirmath Badrinath, deriving his right from Krishna Bodh Ashram, hence, is bound by the judgment in O.S. No 36 of 1965 which was decided against Sri Krishna Bodh Ashram, holding that neither he was qualified to hold the office of Shankaracharya nor actually ever functioned or held the said office. 21. 21. For the purpose of balance of convenience, it is said that since the date of status quo order passed by Trial Court on 22.5.2000, he is continuously holding the office of Shankaracharya. The order of status quo is also continuing under the order of Apex Court passed in Civil Appeal No 4612 of 2005, hence the Same order should be continued. 22. Per contra, Sri Sri Shashi Nandan, learned Sr. Advocate, appearing on behalf of plaintiff respondent urged that the plaintiff respondent never claimed his right as Shankaracharya through Krishna Bodh Ashram but he claimed right to the said office independently. Earlier litigation between Shantanand and Krishna Bodh Ashram is neither binding on plaintiff respondent nor the judgment of Trial Court in O.S. No. 36 of 1965 will come in his way and there is no question of attracting principle of res judiciata. He further submitted that status quo order passed by Court earlier was at a stage when rights of parties had not been adjudicated by any of the Courts but presently, the suit has been decided by Court below, recording findings in favour of plaintiff-respondent and has been decreed. Therefore, prima facie case lies in favour of plaintiff respondent. Moreover, the appellant, on the one hand has consented to have appeal itself heard and decided on merits expeditiously and also commenced arguments on appeal on 3.8.2005, but all of a sudden during the course of hearing, pressed stay application, which is unfair on the part of appellant. It is further contended that by delaying filing of paper books, the appellant himself on the one hand is delaying hearing and on the other hand wants benefit of his own conduct. Neither balance of convenience not irreparable loss lie in favour of appellant for the reason that plaintiff respondent is looking after office effectively and there is no difficulty in functioning of the Peeth. He further submitted that judgment of court below was delivered on 05.05.2015 and for the last three months, there is no order in favour of appellant, hence now also, there is no occasion to pass any stay in favour of appellant and instead, let the appeal be heard on day to day basis and decided expeditiously. 23. He further submitted that judgment of court below was delivered on 05.05.2015 and for the last three months, there is no order in favour of appellant, hence now also, there is no occasion to pass any stay in favour of appellant and instead, let the appeal be heard on day to day basis and decided expeditiously. 23. Sri Shashi Nandan, learned Senior counsel further contended that there is no prima facie case in favour of defendant appellant and, in fact, he is stranger and usurper of the office and cannot be allowed to continue at all. He pointed out that the entire claim set up by defendant appellant is founded on the will dated 18.12.1952 allegedly executed by Swami Brahmanand Saraswati and on this part, issues no. 6 and 7 were framed by Trial Court and returned in favour of plaintiff and against the defendant appellant. Not only this, no ground has been taken in this appeal to challenge finding of trial court that will dated 18.12.1952 was forged and fictitious. 24. We have heard learned counsel for the parties. Sri Shashi Nandan, Sr. counsel for the plaintiff respondent to this extent correct that in the memo of appeal there is not a single ground wherein findings recorded by Trial Court regarding legality of will has been assailed. Prima facie it would mean that defendant appellant has no valid basis to claim any right in the office and allowing him would amount to permitting a stranger to hold office despite specific finding in this regard has been recorded by the Court below and there is no ground in the memo of appeal to assail this part of the finding. 25. The record makes it very clear that stay application was not pressed by appellant initially when appeal was admitted on 26.05.2015 and date was fixed for final hearing with the consent of both the parties. It was on account of apprehension expressed on behalf of the appellant that plaintiff respondent may delay final hearing, we mentioned in our order that, if appeal, for one or other reason is not decided expeditiously, the parties shall be at liberty to address the court on stay application. Record of Trial Court was received within a week i.e. on 03.06.2015. The parties thereafter had enough time to get paper books prepared. Record of Trial Court was received within a week i.e. on 03.06.2015. The parties thereafter had enough time to get paper books prepared. In fact, the respondents had already got their paper books filed, running in thousands of pages, compiled in 8 volumes. It is the appellant whose paper books are yet to be filed. On the one hand, the appellant at the initial stage when appeal was admitted, did not press stay application but thereafter when hearing commenced, counsel for the appellant prayed for disposal of stay application. This conduct of appellant is wholly unjustified and unfair. He is trying to take advantage of his own wrong. When the plaintiff respondent could file paper books on 03.08.2015, the court is unable to understand, why it could not be done by appellant. It cannot be doubted that issues raised in appeal are seriously arguable. On the question of prima facie case, in favour of defendant appellant, we find that there is serious dispute about the factum that plaintiff respondent claimed his right to office of Sankaracharya through Krishna Bodh Ashram as its legal representative or independently. The plaint does not disclose any such claim on the part of plaintiff respondent and in written statement also, there is no specific averment to this effect. We do not propose to delve on this aspect further for the reason that parties had already started hearing, hence any observation made on merits of the matter is bound to prejudice the parties. 26. However, even if we do not express any final opinion on the question of prima facie case, yet we are satisfied that neither balance of convenience lies in favour of appellant nor the question of irreparable loss. The conduct of appellant disentitles him any interim injunction. 27. We admitted appeal on 26th May 2015. Learned Senior Advocate Sri V.B. Upadhya, who appeared at that time, was permitted to address the Court on stay application but instead, he as well as counsel for the respondent all agreed that instead of passing order on stay application, this Court may hear appeal itself, expeditiously. We agreed and passed order accordingly. 28. Once appellant chose not to press application on the very first day when appeal was admitted, we find no justification on his part to press it when Court is hearing appeal. The respondent's paper books are already on record. We agreed and passed order accordingly. 28. Once appellant chose not to press application on the very first day when appeal was admitted, we find no justification on his part to press it when Court is hearing appeal. The respondent's paper books are already on record. The appellant is arguing appeal on the basis of available paper book with the clear understanding that formal paper books of appellant are likely to be filed within a few days. 29. Our observation, made on 26.5.2015 with respect to application, that if appeal is not heard for one or the other reason, the parties may address stay application, would come to apply only when appeal is not being heard for the reason of the Court or the respondent. In the present case, appellant himself has delayed the matter in submission of paper books. That being so, it is not proper to insist upon at this stage for grant of stay. 30. Grant of interim injunction also presupposes that parties should not be guilty of lack of bona fide and their conduct should be clean. In the present case, insisting upon the application though it was not pressed on the date when appeal was admitted, particularly when appellant himself is guilty of delay by not filing paper books within time prescribed, though has been filed by respondent is not justified. In our view, the conduct of appellant also disentitles him for grant of any injunction. 31. The application is accordingly rejected. 32. We make it clear that our observation, if any on the merits of matter are not expression of opinion finally on any of the issues and are confined for the purpose of this order for disposing of stay application. 33. As agreed by the learned counsel for the parties, list this matter for further hearing on 9th September 2015.