JUDGMENT : The present case is taken up through Audio/Video conferencing. 2. The present writ petition has been filed for setting aside the order dated 22.06.2019 passed by the learned District Judge-I, Pakur in Civil Appeal No. 28 of 2018 (Annexure-3 to the writ petition) whereby the learned Appellate Court has stayed the execution of decree dated 06.10.2018 (judgment dated 28.09.2018) passed by the Civil Judge (Sr. Div.)-I, Pakur in Title Suit No. 09/2003. 3. The plaintiffs/respondents 1st party/petitioners filed Title Suit No. 21 of 1990/09 of 2003 in the Court of the Settlement Officer at Dumka, which was subsequently transferred for trial before the Sub-Judge-I, Pakur, seeking the following reliefs:- “(a) It be held and declared that the plaintiffs are the owner of the suit lands described in Schedules A, B, C, D and E and have a perfected title and possessory title as well and the sale deed in favour of Jagdish Laha did not confer any title in him nor affected the title of the plaintiffs nor the said sale was operative and the record be ordered to be prepared in the name of the plaintiffs and defendants 2nd and 3rd parties. (b) A decree for recovery of possession be passed against the defendants 1st party and possession be got delivered. (c) Cost of the suit be awarded. (d) Such other relief or reliefs which the court deems fit and proper be awarded.” 4. The Civil Judge (Sr. Div.)-I, Pakur decreed Title Suit No. 09 of 2003 in favour of the petitioners vide judgment dated 28.09.2018 (decree dated 06.10.2018) and rejected the claim of title of the defendant Nos. 1 & 2 (the defendants 1st party) as well as the defendant No.6 (the defendant 4th party) holding their possession as permissive possession. Aggrieved by the said judgment, the defendants (1st party)/appellants/respondents preferred Title Appeal No. 28 of 2018 before the learned Principal District Judge, Pakur. The entire case record was transferred to the Court of the learned District Judge-I, Pakur before whom they filed an application under Order XLI Rule 5 read with Section 151 of the CPC seeking stay of the execution proceeding and for restraining the petitioners from taking any step to dispossess them from the suit land till final disposal of the said appeal. A rejoinder to the said application was filed on 30.05.2019 on behalf of the petitioners. A rejoinder to the said application was filed on 30.05.2019 on behalf of the petitioners. However, the learned Appellate Court vide the impugned order dated 22.06.2019, allowed the application of the appellants/respondents herein and stayed the execution of the judgment dated 28.09.2018 (decree dated 06.10.2018) passed by the Civil Judge (Sr. Div.)-I, Pakur in Title Suit No. 09/2003. 5. Learned Sr. counsel for the petitioners submits that the appeal preferred by the respondents/defendants 1st party is not maintainable as Anjali Mandal (the respondent No.2) and Suchitra Pal (the respondent No.3), who were not made party in the original suit, have been illegally made appellants in the said appeal. It is further submitted that Dhirendra Nath Mandal and Pankaj Mandal had died long ago as per the service report of the summons. However, no step had been taken for substitution of the legal heirs of the deceased respondents and as such the said appeal stands abated. The respondents 1st party have neither any prima facie case nor balance of convenience in the suit lies in their favour after passing the judgment and decree against them in the original suit. The said judgment and decree passed in favour of the petitioners are well proved by oral and documentary evidence based on the judicial principles laid down by the Hon’ble Apex Court as well as the High Court and as such the learned Appellate Court should not have granted stay of the execution. The respondents 1st party had no counter claim in the suit land and therefore they may be estopped from raising the plea of injunction after passing the judgment and decree. The petition filed under Order XLI Rule 5 read with Section 151 of the CPC for restraining the plaintiffs from taking possession of the suit land is misconceived and not maintainable. The said appeal was liable to be dismissed being not maintainable as the appellant Nos. 2 & 3 were neither the plaintiffs nor the defendants in the original title suit. It is further submitted that the learned Appellate Court has failed to consider the fact that no step has been taken by the appellants for re-issuance of summons as against the respondent Nos. 7, 8 & 9 whose summons have been returned unserved. 2 & 3 were neither the plaintiffs nor the defendants in the original title suit. It is further submitted that the learned Appellate Court has failed to consider the fact that no step has been taken by the appellants for re-issuance of summons as against the respondent Nos. 7, 8 & 9 whose summons have been returned unserved. The learned Appellate Court has restrained the plaintiffs (decree holders) from occupying and using the suit land which is wholly illegal and violative of the principle of grant of perpetual injunction in favour of the petitioners. 6. Learned counsel appearing on behalf of the respondents has submitted that the learned Appellate Court has rightly stayed the execution proceeding holding that dispossession is considered as a substantial loss to the party applying for stay of the execution. The petitioners have failed to show any illegality or perversity in the impugned order dated 22.06.2019 warranting any interference of this Court. Hence, the present writ petition is liable to be dismissed. 7. Heard learned counsel for the parties and perused the relevant materials available on record. To appreciate the said submissions of learned counsel for the petitioners, it would be appropriate to reproduce Order XLI Rule 5 of the Code of Civil Procedure, 1908 hereunder:- “5. 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 contrary, be acted upon by the Court of first instance. (2) Stay by Court which passed the decree- Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (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 order as may ultimately be binding upon him. (4) Subject to the provisions of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application. (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.” 8. In view of the aforesaid provisions, mere filing of appeal shall not operate as stay of execution of the decree or order appealed from, unless the Appellate Court orders for stay of execution of decree for sufficient cause. Sub-section 3 deals with the conditions which are required to be satisfied before passing the order of stay of execution. Thus, before passing the order of execution, the Court has to satisfy itself that substantial loss may result to the party applying for stay of the execution. If the stay is granted, the Court must be satisfied that the application has been made without unreasonable delay and security has also been given by the applicant for due performance of such decree. 9. In the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 , the Hon’ble Supreme Court has held as under:- “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. In the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 , the Hon’ble Supreme Court has held as under:- “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. 9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be “substantial loss” to the party applying for stay of execution within the meaning of clause (a) of sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the appellate court can impose. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the appellate court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not a statutory right conferred on the appellant. So also, an appellate court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for order of stay must do equity for seeking equity. Depending on the facts and circumstances of a given case, an appellate court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In South Eastern Coalfields Ltd. v. State of M.P. [ (2003) 8 SCC 648 ] this Court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection to it, effective during the pendency of the proceedings, has held that such interim orders, passed at an interim stage, stand reversed in the event of the final decision going against the party successful in securing interim orders in its favour; and the successful party at the end would be justified in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery to it of benefit earned by the opposite party under the interim order of the High Court, or (b) compensation for what it has lost, and to grant such relief is the inherent jurisdiction of the court. In our opinion, while granting an order of stay under Order 41 Rule 5 CPC, the appellate court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal insofar as those proceedings are concerned. In our opinion, while granting an order of stay under Order 41 Rule 5 CPC, the appellate court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal insofar as those proceedings are concerned. Thus, for example, though a decree for payment of money is not ordinarily stayed by the appellate court, yet, if it exercises its jurisdiction to grant stay in an exceptional case it may direct the appellant to make payment of the decretal amount with interest as a condition precedent to the grant of stay, though the decree under appeal does not make provision for payment of interest by the judgment-debtor to the decree-holder. Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record — all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis v. Bombay Municipal Corpn. [ (1985) 3 SCC 545 ] : (SCC p. 574, para 35) “Common sense which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants.” 10. In the aforesaid case, it has been specifically held that before passing the order for stay of the execution of a decree, the Appellate Court should consider the existence of sufficient cause in favour of the appellant. The principal consideration before 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 the appeal is allowed. This consideration should be weighed against the other paramount consideration as to why the party in whose favour the decree is passed may be deprived of the fruits of the decree or order keeping in view that the losing party has chosen to move before the superior forum. This consideration should be weighed against the other paramount consideration as to why the party in whose favour the decree is passed may be deprived of the fruits of the decree or order keeping in view that the losing party has chosen to move before the superior forum. It is further held that dispossession, during the pendency of an appeal of a party in possession, is generally considered to be “substantial loss” to the party applying for stay of execution within the meaning of Clause (a) of sub-rule (3) of Rule 5 of Order XLI of the C.P.C. 11. In the present case, the learned Court below while passing the impugned order dated 22.06.2019, has held as under:- “On the basis of rival contention advanced by the parties, I have gone thoroughly with the judgment and decree impugned passed by the Court below. Operative portion of the judgment impugned, on perusal would show that the opposing defendants 1st party and the defendants 4th party were directed to hand over peaceful possession of the suit property described in Schedule- A, B, C, D & E in the plaint to the plaintiff 2nd party, the defendants 2nd party and the defendants 3rd party within 30 days. In this appeal, the appellants are defendants 1st party. Both the parties are claiming their rival peaceful continuous possession over the suit property. By instant appeal, the entire finding passed by the Court below has been questioned. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be ‘substantial loss’ to the party applying for stay of execution within the meaning of Clause (a) of sub-rule 3 of Rule 5 of Order XLI of the Code. Admittedly, in this case execution proceeding is yet to commence. Considering therefore rival claim by the parties that they are in actual possession over the suit-property, I am of the view that the appellants deserve the benefit of the provisions envisaged under Order XLI Rule 5 of the Code. Accordingly, execution of a decree of the judgment impugned subject to rider upon the direction contained in judgment passed by Hon’ble Supreme Court in Criminal Appeal No. 1375-76 of 2013, which also applies in civil cases, is stayed till further order.” 12. Accordingly, execution of a decree of the judgment impugned subject to rider upon the direction contained in judgment passed by Hon’ble Supreme Court in Criminal Appeal No. 1375-76 of 2013, which also applies in civil cases, is stayed till further order.” 12. Thus, the learned Appellate Court while allowing the application for stay of execution proceeding, has observed that dispossession during the pendency of an appeal of a party in possession is generally considered to be substantial loss to the party applying for such stay within the meaning of Clause (a) of sub-rule (3) of Rule 5 of Order XLI of the C.P.C. The said observation appears to be in conformity with the judgment of the Hon’ble Supreme Court rendered in the case of Atma Ram Properties (P) Ltd. (Supra). As such, I find no infirmity in the impugned order dated 22.06.2019 passed by the learned District Judge-I, Pakur in Civil Appeal No. 28 of 2018 so as to interfere with the same in the writ jurisdiction. 13. The present writ petition is accordingly dismissed. 14. However, in order to balance the equity between the parties, it is expected from the learned Appellate Court to expedite the hearing of Title Appeal No. 28/2018 and decide the same preferably within a period of six months from the date of receipt/production of a copy of this order.