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Allahabad High Court · body

2019 DIGILAW 593 (ALL)

Abrar Husain v. State Of U. P.

2019-03-06

SIDDHARTHA VARMA

body2019
JUDGMENT : SIDDHARTHA VARMA, J. 1. Rejoinder affidavit filed today be kept on record. 2. This writ petition has been filed against an order dated 26.11.2018 by which the effect and operation of the decree dated 12.11.2018 was stayed and further a direction was issued that no sale of the property was to take place. 3. A suit for declaration was filed by the petitioner-plaintiff which was decreed on 12.11.2018. Against this decree, the respondent no.5 filed a First Appeal which was accompanied by an application under Order XLI Rule 5 of the C.P.C. On this application, the impugned order was passed and against which the instant writ petition has been filed. 4. Learned counsel for the petitioner relied upon the provisions of Order XLI Rule 5 C.P.C. and submitted that the Lower Appellate Court had no authority or jurisdiction to stay the effect and operation of a declaratory decree since no execution of a declaratory decree was required and, therefore, the staying of the decree was erroneous. However, he did not assail the other portion of the order by which the parties had been restrained from alienating the property. Learned counsel for the petitioner relied upon The State of Andhra Vs. S.Kameswar Rao, (1959) AIR A.P. 39 wherein it has been held that the effect and operation of a declaratory decree could not have been stayed as there was no execution of a declaratory decree required. He also referred to Baldeo Singh Vs. Chuni Lal & Ors, (1933) AIR Allahabad 664 5. Learned counsel for the respondent no.5, however, submitted that the effect and operation of the decree could always be stayed. Learned counsel further submits that there was no error in the order and argued that if the operation of the decree was not stayed then the petitioner would try to get the possession of plot no.154 which, according to him, was in possession of the respondent no.5. 6. A bare perusal of the provisions of Order XLI Rule 5 C.P.C. definitely shows that only the execution of an executable decree can be stayed. Not every decree requires execution and, therefore, when by the impugned order dated 26.11.2018 the whole decree itself was stayed the Court finds that it was passed without any provision of law. 7. 6. A bare perusal of the provisions of Order XLI Rule 5 C.P.C. definitely shows that only the execution of an executable decree can be stayed. Not every decree requires execution and, therefore, when by the impugned order dated 26.11.2018 the whole decree itself was stayed the Court finds that it was passed without any provision of law. 7. However, since the property in lis has to be preserved, a direction is being issued that during the pendency of the appeal, strict status-quo shall be maintained and no third party right shall be created. It is also directed that the appeal itself shall be decided within a period of three months from the date of presentation of a certified copy of this order in accordance with law, unless there is any other legal impediment. 8. The writ petition is, accordingly, disposed of with the aforesaid observations.