JUDGMENT Hon’ble Manoj Misra, J.—List has been revised. Learned counsel for the petitioner is present. Though the name of Sri A.T. Kulshrestha who appears for the private respondents is shown in the cause list but he has not appeared even in the revised call. Even no counter-affidavit has been filed despite opportunity given vide order dated 22.5.2013. 2. Heard learned counsel for the petitioner and perused the record. 3. The present petition has been filed assailing the orders dated 20th July, 2012 and 29th March, 2013, passed by Civil Judge (Jr. Div.) Kairana, district Prabudh Nagar (Shamli) and Additional District Judge, Court No. 8, district Muzaffar Nagar, respectively. 4. The facts of the case as could be elicited from the petition are as follows. The predecessor-in-interest of the petitioner, namely, Khila, instituted suit No. 255 of 1987 for possession against respondent No. 2 and others, who are represented by their heirs and legal representatives. The defendants of that suit instituted suit No. 177 of 1988 for injunction. Both suits were consolidated. Thereafter, suit No. 255 of 1987 was dismissed and suit No. 177 of 1988 was decreed by the trial Court against which two civil appeals, namely, C.A. No. 27 of 2003 and C.A. No. 28 of 2003 were filed. Both appeals were allowed, as a result O.S. No. 255 of 1987 was decreed whereas O.S. No. 177 of 1988 was dismissed vide judgment and order dated 27th March, 2010 passed by Additional District Judge Court No. 10, Muzaffarnagar. 5. It appears that against the judgment and decree passed by the appellate Court, two second appeals were filed before this Court which, according to the petitioner, though are pending as Second Appeal Nos. 440 of 2010 and 441 of 2010, but no interim order staying the effect and operation of the appellate Court decree has been passed. 6. As there was no interim order on the decree passed by the appellate Court, the appellate Court decree was put to execution by filing Execution Case No. 4 of 2010. 7. In the execution proceeding, the judgment-debtor filed an objection claiming that since second appeal against the decree was pending in the High Court, the execution proceeding be stayed. 8. As there was no interim order on the decree passed by the appellate Court, the appellate Court decree was put to execution by filing Execution Case No. 4 of 2010. 7. In the execution proceeding, the judgment-debtor filed an objection claiming that since second appeal against the decree was pending in the High Court, the execution proceeding be stayed. 8. The said objection was countered by the petitioner on the ground that mere pendency of an appeal against a decree is not a sufficient ground to stay the execution proceeding and as there was no interim order passed in the appeal, the execution proceeding should be brought to its logical conclusion. 9. By impugned order dated 20th July, 2012, the execution Court accepted the objection of the judgment-debtor and by placing reliance on a decision of the Apex Court in the case of Union of India v. West Coast Paper Mills Ltd., (2004) 2 SCC 747 , stayed the execution proceeding till decision of the second appeals. 10. Aggrieved by the order dated 20th July, 2012, the petitioner filed Civil Revision No. 108 of 2012, which has been dismissed by the Court of Additional District Judge, Court No. 8, Muzaffar Nagar, vide order dated 29th March, 2013. 11. The petitioner has challenged the orders impugned on the ground that admittedly in the pending second appeals against the appellate Court decree, no interim order has been passed staying the execution of the decree and therefore there was no justification to suspend the execution proceeding keeping in mind the provisions of Order 41 Rule 5 (1) of the Code of Civil Procedure (in short CPC). It has further been submitted that the judgment of the Apex Court in the case of Union of India v. West Coast Paper Mills Ltd. (supra) is not on the issue that when an appeal is pending against the decree, then, even if there is no interim order passed in the appeal, the execution proceeding should be kept in abeyance. The said judgment dealt with an issue as to the date from which the period of limitation for filing of execution of a lower Court decree would be counted where an appeal is preferred and entertained against the lower Court decree and, thereafter, judgment is passed, even though no interim order operated against the lower Court decree during pendency of appeal. 12. 12. Learned counsel for the petitioner has placed reliance on decision of the Apex Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors Pvt. Ltd., (2005) 1 SCC 705 , where the Apex Court had taken a view that mere preferring of an appeal does not operate as stay on the decree or order appealed against. 13. In Atma Ram’s case (supra) the Apex Court, in paragraph 8 of the report, observed as follows: 8. It is well-settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks itself is: why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted. 14. I have considered the submissions of learned counsel for the petitioner and have perused the judgment of the Apex Court in Union of India v. West Coast Paper Mills case (supra) which has been relied upon by the Court below. 14. I have considered the submissions of learned counsel for the petitioner and have perused the judgment of the Apex Court in Union of India v. West Coast Paper Mills case (supra) which has been relied upon by the Court below. The decision in the case of Atma Ram (supra) is clear on the point that mere filing of an appeal does not operate as stay on the decree or order appealed against and is squarely applicable on the issue involved. It clearly provides that a prayer for grant of stay on operation of the decree or order appealed against is to be made before the appellate or higher forum which has discretion to grant or to refuse the prayer. The decision of the Apex Court in the case of Union of India v. West Coast Paper Mills Ltd. (supra) dealt with an issue as to from which date period of limitation would be counted for filing of an execution application in respect of a decree or order against which an appeal has been entertained and, thereafter, the appellate Court passes an order. The Apex Court in that context had taken a view that where a challenge to a decree is entertained and thereafter a fresh decision is taken by the appellate Court, then the decision of the lower Court merges with appellate Court and therefore even if no interim order is passed against the trial Court decree the period of limitation for execution of the decree would commence from the date of decision of the appellate Court. The judgment of the Apex Court in Union of India v. West Coast Paper Mills Ltd. (supra) no where lays down as law that mere filing of an appeal would amount to stay of the decree or order appealed against. 15. Under the circumstances, this Court is of the considered view that the judgment and orders passed by the Courts below are liable to be set aside. 16. Accordingly, this petition is allowed. The order dated 20th July, 2012, passed by Civil Judge (Jr.Div.), Kairana, district Prabudh Nagar (Shamli) in Execution Case No. 4 of 2010 and order dated 29th March, 2013, passed by Additional District Judge, Court No. 8, Muzaffar Nagar in Civil Revision No. 108 of 2012 are hereby set aside. 16. Accordingly, this petition is allowed. The order dated 20th July, 2012, passed by Civil Judge (Jr.Div.), Kairana, district Prabudh Nagar (Shamli) in Execution Case No. 4 of 2010 and order dated 29th March, 2013, passed by Additional District Judge, Court No. 8, Muzaffar Nagar in Civil Revision No. 108 of 2012 are hereby set aside. In absence of any other legal impediment, the execution Court shall proceed with the execution subject to any interim order that may be passed by the appellate Court.