JUDGMENT : P. SOMARAJAN, J. 1. Heard both sides. An execution petition was dismissed by the Court recording satisfaction of the decree in O.S. No. 401/2013, against which the decree holder came up in appeal. 2. Very serious questions came up for consideration based on the laches on the part of the court at various stages of a litigation: (i) At first, the court below has committed a very serious mistake by passing a common decree and judgment in both the suits for recovery of amount based on divergent claims raised by the respective plaintiffs. The dispute in both the suits is with respect to the entitlement of amount stands in the name of a deceased predecessor-in-interest with the first defendant-LIC of India. The claim for the very same amount by two sets of plaintiffs in two suits - O.S. No. 401/2013 and O.S. No. 348/2013 were decreed by the trial court under a common decree and judgment, thereby the first defendant was mulcted with the liability of paying double the amount due with interest. In fact, two inconsistent mutually destructive decrees were granted by the then Sub Judge, that too, by way of a common decree and judgment. Sheer negligence on the part of the trial court is well evident and the trial court even did not understand the very nature of the claim raised by the respective parties to the suit. (ii) After the passing of both the decrees, the then Sub Judge (yet another officer) had released the entire amount in deposit in O.S. No. 401/2013 (Rs. 10 lakhs with interest) to the fourth defendant in the suit on an interlocutory application. (iii) It was given to the fourth defendant though he is not a decree holder in that suit. The amount was deposited in discharge of the decree in O.S. No. 401/2013 on the reason that according to the first defendant, the plaintiffs in that suit are entitled to the amount and not by the fourth defendant in that suit. Instead of giving the said amount in deposit to the decree holder in that suit in satisfaction of the decree, it was given to the fourth defendant for the reasons best known to the officer concerned. Instead of giving the said amount in deposit to the decree holder in that suit in satisfaction of the decree, it was given to the fourth defendant for the reasons best known to the officer concerned. (iv) The said amount was given to the fourth defendant without initiating any execution proceedings by the fourth defendant based on a decree passed in his favour in the connected suit in O.S. No. 348/2013. In fact, the abovesaid amount was deposited by the first defendant not in that suit and not in discharge of a decree that may be passed in that suit. It is the amount deposited in another suit, in which a decree was passed by way of satisfaction of the decree amount. (v) The amount in deposit in a particular suit i.e. O.S. No. 401/2013 was given to fourth defendant (plaintiff in another suit) overlooking the decree passed in that suit. (vi) It was released on an interlocutory application by the fourth defendant after the grant of decree in favour of the plaintiff in that suit. (vii) It was released after noticing pendency of two appeals against the common decree and judgment passed by the trial court (divergent decrees). (viii) It was released simply on the ground that the pendency of appeal may not operate as stay of proceedings. (ix) It was released to the fourth defendant without ordering sufficient security or any security at all. The minimum requirement to safeguard the interest of the decree holder in that suit or to protect the amount deposited in discharge of that decree was not fulfilled and it was given to a person, who is not a decree holder in that suit, that too, without ordering any security and without taking any caution or precautionary measure and thereby violated all the basic principles of law and provisions. (x) The fact that two mutually destructive inconsistent decrees were passed based on the divergent claims overlooking all the settled principles was not even considered by the trial court at the time when the amount was released to a person who is not a decree holder in that suit. (xi) No sufficient reason much less any reason was raised by the trial court as to why the amount deposited in discharge of the decree in that suit was given to the person who is not a decree holder in that suit. (xi) No sufficient reason much less any reason was raised by the trial court as to why the amount deposited in discharge of the decree in that suit was given to the person who is not a decree holder in that suit. (xii) The provisions dealing with transfer of amount deposited in a particular suit or its attachment or initiation of garnishee proceedings were not followed or even whispered while releasing the amount deposited in a particular suit towards the decree amount to a person, who is not a decree holder in that suit. (xiii) There was undue hastiness on the part of the trial court in releasing the amount to the fourth defendant and even a breathing time was not given to the other party to the suit either to obtain an order of stay from the appellate court or to lodge their objection. 3. In the abovesaid background, several questions came up for consideration including the legal impact of Order XLI Rule 5(1) C.P.C. Rule 5(1) of Order XLI C.P.C. constitutes a declaration at first that an appeal shall not operate as stay of proceedings under a decree. The latter part that “execution of a decree shall not be stayed unless there is sufficient ground or cause for ordering stay of execution of such decree” in its effect gives considerable support to the declaration at first made in that provision. The very first sentence of Rule 5(1) amounts to a declaration to the effect that mere filing of an appeal should not be taken as to operate as stay of decree appealed against. It is further stated that execution of a decree shall not be stayed unless there is sufficient ground or cause for ordering stay of execution of such decree. The requirement incorporated in that provision that stay can be granted only on sufficient cause is really promoting the advantage of a decree by way of execution and prevents unwarranted delay under the guise of pendency of appeal. At the same time, jurisdiction is given to the appellate court to grant stay on sufficient cause and the legislature had taken yet another remedy in the case of reversal of decree by the first appellate court by incorporating sufficient remedy under Section 144 C.P.C. (restitution). Necessarily, the question, at what time and at what stage the declaration incorporated in Rule 5(1) would operate assumes importance. Necessarily, the question, at what time and at what stage the declaration incorporated in Rule 5(1) would operate assumes importance. The construction of Rule 5(1) of Order XLI C.P.C. makes the legal position very much clear, which is extracted below for reference: “5. Stay by Appellate Court: (I) 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.” (Emphasis supplied) 4. The construction of Rule 5(1) of Order XLI C.P.C. is self explanatory with respect to the authority and power that can be exercised by the first appellate court so as to order “stay of execution of decree.” The first appellate court is not expected to pass any stay order or stay of proceedings unless there is sufficient cause. At the same time, the court can order stay by exercising its discretion on an objective satisfaction. The word “stay of proceedings under a decree” incorporated in that provision stands for execution of decree/order and nothing else. The corollary is that Rule 5(1) of Order XLI C.P.C. would operate only against an execution proceedings or proceedings initiated for executing a decree or order, subject to the exception under Order XXXVIII Rule 1 and 5 C.P.C. dealing with the question of arrest before judgment and attachment before judgment. Necessarily, the scope and ambit of a stay that can be passed by virtue of Rule 5(1) of Order XLI C.P.C. by the first appellate court should be and must be for the purpose of staying execution of a decree or order or against an execution petition. Necessarily, the scope and ambit of a stay that can be passed by virtue of Rule 5(1) of Order XLI C.P.C. by the first appellate court should be and must be for the purpose of staying execution of a decree or order or against an execution petition. Such order of stay would come into operation only when execution proceedings were initiated for execution of the decree or any proceedings taken to get it executed. But at the same time, it is within the jurisdiction of the first appellate court to grant stay in advance, though no such execution proceedings were initiated. But it would operate only against the execution proceedings or steps if any, taken to get the decree/order executed. In other words, the abovesaid principle incorporated under Rule 5(1) of Order XLI C.P.C. would not operate unless there is execution proceedings initiated or proceedings taken to get the decree/order executed. Necessarily, the declaration incorporated under the said Rule that mere pendency of appeal will not operate as stay would come into effect only with respect to execution proceedings based on a decree or any step taken to get it executed. The amount admittedly released by the Sub Court to the fourth defendant by taking advantage of the abovesaid declaration before the initiation of any execution proceedings amounts to misconception of the provision and is totally illegal. In fact, there is no scope for passing an order of stay at that stage, though it is within the jurisdiction of the first appellate court to grant an order of stay in advance. The release of the amount on the ground that there was no order of stay is per se illegal and cannot be sustained. The seriousness of the mistake and laches committed by the trial court is well evident from the fact that the trial court had given the entire amount deposited towards discharge of the decree, to the fourth defendant, who is not a decree holder in that suit. It was not given to the decree holder in that suit, but to the fourth defendant, that too, without any execution proceedings and without ordering sufficient security on an interlocutory application. No execution proceedings were initiated by the fourth defendant even in the connected suit and no steps were taken to attach and recover the amount deposited in another suit - O.S. No. 401/2013. No execution proceedings were initiated by the fourth defendant even in the connected suit and no steps were taken to attach and recover the amount deposited in another suit - O.S. No. 401/2013. It was released after noticing pendency of two appeals under the guise that the appeal will not operate as a stay. It is against the provision incorporated under Rule 5(1) of Order XLI C.P.C. The trial court has committed yet another serious laches that the said amount was released to the fourth defendant without ordering sufficient security. The undue hastiness by the trial court is self explanatory of the way in which the matter was handled and that has resulted in not only miscarriage of justice, but also gross injustice, thereby the decree holder in that suit has been left out without any remedy. 5. Quite interestingly, among the two appeals filed, one among the contradictory decrees in O.S. No. 348/2013 was set aside by the first appellate court by dismissing the suit. The amount was released to the decree holder in that suit though it was deposited in another suit by way of discharge of decree in that suit. The decree in O.S. No. 401/2013 was confirmed in appeal. It is in that suit, O.S. No. 401/2013, the abovesaid amount was deposited, but it was released to the fourth defendant, who is the plaintiff in the other suit O.S. No. 348/2013, which was ultimately ended in dismissal. By that time, the fourth defendant had misappropriated the entire amount and passed away subsequently. 6. The execution petition filed by the decree holder in O.S. No. 401/2013 after the culmination of first appeal was dismissed by the execution court on the ground that the decree has been satisfied without paying any amount to the decree holder. Admittedly, no amount was paid under the decree to the decree holder in O.S. No. 401/2013, without which satisfaction was recorded by the execution court. Yet another issue would also arise at this juncture as to whether the judgment-debtor can be mulcted with an additional liability to pay the decree amount once again after its deposit in court and whether he can be held liable for the laches of the trial court in releasing the amount to the fourth defendant, that too, without ordering security. Yet another issue would also arise at this juncture as to whether the judgment-debtor can be mulcted with an additional liability to pay the decree amount once again after its deposit in court and whether he can be held liable for the laches of the trial court in releasing the amount to the fourth defendant, that too, without ordering security. The act of the trial court is totally against the provisions contained in Order XLI C.P.C. and has even overlooked the basic principles governing the area. The extent of sheer negligence on the part of the trial court looms large on the death of the fourth defendant who passed away without leaving any property as that of him so as to enable restitution. 7. Since the amount was given to the plaintiff in the connected suit O.S. No. 348/2013, the defendant in that suit - Life Insurance Corporation of India can certainly be permitted to maintain an application for restitution to the possible extent for recovery of the said amount received by the plaintiff in that suit in view of the reversal of the decree and dismissal of the suit by the appellate court. Hence, the order dismissing the execution petition in O.S. No. 401/2013 by endorsing satisfaction of the decree is hereby set aside and the execution petition will stand restored to the file of execution court to proceed further with the matter, for which the parties shall appear before that court on 13.02.2023. The LIC of India, the respondent is hereby allowed to file restitution application under Section 144 C.P.C. for realization of the amount paid to the plaintiff in O.S. No. 348/2013 out of the estate, if any left out by the deceased. For the sake of convenience, there will be a direction to the execution court that in that event, both the applications shall be considered and proceeded simultaneously. 8. The appeal is allowed accordingly. No costs.