ORDER : SANGEETA K. VISHEN, J. 1. By this application, the applicants – original defendants, have prayed that orders dated 18.12.2024, 29.01.2025 and 30.01.2025, be declared as illegal and having been passed overreaching the powers of this Court. It is also prayed that the possession of the disputed land be ordered to be handed over to the applicants – original defendants immediately by drawing panchanama and appointing the Court Commissioner. Coupled with further prayer that the registered sale deed dated 21.01.2025, executed during the pendency of the appeal in favour of the respondents – original plaintiffs be cancelled. 2. Mr P. M. Bhatt, learned advocate appearing for the applicants – original defendants, has submitted that the present application was necessitated owing to the orders passed in execution proceedings being Special Execution application no.17 of 2022 filed by the original plaintiffs. It is submitted that the Special Civil Suit no.344 of 2011 (hereinafter referred to as “the suit”) was filed which has been decreed vide judgment dated 24.01.2022 (hereinafter referred to as “the impugned judgment”) passed by the learned Additional Senior Civil Judge, Vadodara whereby, the defendants have been directed to execute the registered sale deed in favour of the plaintiffs and the plaintiffs, are directed to pay the remainder amount to the defendants. 2.1 It is submitted that the impugned judgment is challenged in the captioned appeal immediately. Owing to certain technical wantings it was not registered. After the registration, the civil application seeking condonation of delay, was allowed by this Court vide order dated 28.02.2023 and thereafter, in the first appeal, this Court, was kind enough to direct the Registry to call for the Record and Proceedings by passing an order dated 13.03.2023. It is submitted that the Record and Proceedings, were received by this Court and therefore, it is difficult to fathom as to how and which record the learned Judge has referred to while passing the orders. What record could have been perused and considered by the learned Judge is not clear. It is next submitted that that vide order dated 12.04.2023, this Court, was kind enough to admit the appeal. Since there was some proposal by the respondents, the matter was adjourned from time to time. What record could have been perused and considered by the learned Judge is not clear. It is next submitted that that vide order dated 12.04.2023, this Court, was kind enough to admit the appeal. Since there was some proposal by the respondents, the matter was adjourned from time to time. On 05.12.2023, this Court, has passed an order recording the statement of learned advocate appearing for the appellants - original defendants that the appellants – original defendants are not willing to alienate property in any manner. When this Court, has admitted the mater and the statement on behalf of the appellants – original defendants was recorded, the original plaintiffs could not have filed application seeking execution of the judgment and at the same time, the trial Court ought not to have entertained the execution proceedings. It is submitted that disregarding the pendency of the appeal and the order of admission passed by this Court, the trial court, on 11.08.2023 passed an order to produce the draft sale deed which was produced on 07.10.2023, followed by public notice on 10.05.2024. It is submitted that despite the fact that one of the defendants passed away, no steps were taken for bringing the heirs on the record. The matter was heard and was kept on 18.12.2024 and the trial court, issued the commission letter and the matter, thereafter, was kept in the month of January 2025. Steps were taken and ultimately, on 21.01.2025, registered sale deed came to be executed by the Court Commissioner in favour of the original plaintiffs and physical possession of the land was handed over. It is thereafter, that the panchnama was drawn. From the record, it emerges that twice the possession was handed over of the land in question which, could not have been done. Once the possession was already handed over, there could not have been again process of the handing over of the possession. 2.2 It is further submitted that on 29.01.2025, the defendants submitted an application bringing it to the notice of the Court the order passed and also cautioning that if any orders are passed despite the admission and pendency of the first appeal, it would amount to disobedience of the order passed by the High Court. The submission made on behalf of the appellants – original defendants that they shall not alienate the property was also brought to the notice of the Court. The submission made on behalf of the appellants – original defendants that they shall not alienate the property was also brought to the notice of the Court. On the very same day, the learned Judge, passed an order rejecting the application on the ground that the order passed by the High Court is misinterpreted. It is submitted that by observing thus, the trial Court, has misdirected itself. Not only that even the judgment of the Apex Court which was cited has been misinterpreted, considering the fact that the factual aspects involved therein vis-a-vis the facts in the case on hand were distinct and different. In the said case, scrutiny was yet to take place whereas, in the case on hand, the appeal has been filed and admitted. When the appeal is admitted and the Rule has been issued, the Court, ought to have stayed its hands inasmuch as, issuance of the Rule by the Court means command or direction to the authorities to ensure compliance. It is further submitted that passing of the order, is nothing but civil contempt as per the provisions of Section 2 (c) of the Contempt of Courts Act, 1971. Therefore, entertaining the execution application and passing various orders and allowing execution of the sale deed, would amount to overreaching of the court process inasmuch as, now, nothing is left in the appeal, to be decided, once the sale deed has been executed. 2.3 It is next submitted that there were several lacunae in the proceedings conducted by the Court so also by the Court Commissioner while handing over the possession. In the panchnama, the Court Commissioner has recorded the time of 10:00 to 11:30 while, in the application filed by the respondent – original plaintiffs seeking withdrawal of the purshish, the time mentioned is from 10:00 to 11:00. It is further submitted that after execution of the sale deed, application was filed seeking withdrawal of the proceedings, which was allowed by passing an order dated 30.01.2025. It is submitted that such withdrawal, ought not to have been permitted by the Court below. It is therefore urged that the orders dated 18.12.2024, 29.01.2025 and 30.01.2025, are illegal and have been passed by overreaching the power of this Court. 3. Heard Mr P. M. Bhatt, learned advocate appearing for the applicants – original defendants. 4. It is submitted that such withdrawal, ought not to have been permitted by the Court below. It is therefore urged that the orders dated 18.12.2024, 29.01.2025 and 30.01.2025, are illegal and have been passed by overreaching the power of this Court. 3. Heard Mr P. M. Bhatt, learned advocate appearing for the applicants – original defendants. 4. Captioned application has been filed on the ground that the orders dated 18.12.2024, 29.01.2025 and 30.01.2025 are illegal and have been passed by overreaching the court process. Prayer is also prayed for direction to the original plaintiffs to hand over the possession back immediately, coupled with prayer seeking cancellation of the registered sale deed dated 21.01.2025. 5. Pertinently, the first appeal is filed against the impugned judgment whereby the trial court, while allowing the suit has directed the defendants to execute a registered sale deed in favour of the plaintiffs and the plaintiffs, were further directed to pay the remainder amount to the defendants. The impugned judgment is dated 24.01.2022 and the appeal was presented on 15.11.2022 and was registered only on 09.03.2023. There was a delay in preferring the appeal and it came to be condoned by this Court by passing the order dated 28.02.2023. It is thereafter, that the captioned appeal was listed for hearing. On 13.03.2023, this Court, was kind enough to call for the Record and Proceedings of the suit and thereafter on 12.04.2023, this Court, was kind enough to admit the first appeal and the service of notice of admission was accepted by the learned advocate for the respondents – original plaintiffs. In civil application, notice came to be issued with no stay. The matter was thereafter adjourned from time to time and on 05.12.2023, the Division Bench, has passed the following order: “When the application is taken up for hearing, learned advocates have drawn our attention to an order dated 12.4.2023 whereby main First Appeal is admitted and as such both the learned advocates have requested that present Civil Application for stay may be heard along with the main First Appeal. This is in view of the fact that learned advocate Mr. P.M. Bhatt has submitted that in the meantime, the appellants are not to alienate the property in any manner. That being the position, we deem it proper to hear the present Civil Application along with main First Appeal. This is in view of the fact that learned advocate Mr. P.M. Bhatt has submitted that in the meantime, the appellants are not to alienate the property in any manner. That being the position, we deem it proper to hear the present Civil Application along with main First Appeal. Parties are at liberty to move appropriate application in case of any exigency arises.” 6. Clearly, the parties were reserved a liberty to move appropriate application in case of need. 7. After the judgment and before registration of first appeal, somewhere in the month of May 2022, the plaintiffs had preferred Special Execution application no.17 of 2022 with a prayer to the Court to direct the defendants to execute the sale deed. The Court below has issued a notice. Hearing of the application was kept on 23.06.2022 with an endorsement that the application be served upon the original plaintiffs. It is thereafter that on 18.12.2024, order has been passed below application Exhibit 1 whereby, the direction was issued appointing Court Commissioner Shri R. A. Pandya, Assistant for executing sale deed and for handing over the possession to the plaintiffs. It is clear from the order and not disputed by Mr P. M. Bhatt, learned advocate that the applicants – defendants neither remained present in the execution proceedings nor filed their objections. It is thereafter on 29.01.2025, application was filed by the defendants, inter alia, stating that the appeal has been admitted by the High Court vide order dated 12.04.2023 and order has been passed on 05.12.2023 in the civil application. The statement of the learned advocate for the defendants has been recorded that they would not be alienating the suit property. Application, further states that the land, cannot be transferred in any manner and if any order is passed, it would amount to disobedience of the Court’s order. The application came to be rejected vide order dated 29.01.2025 as the Court, was of the opinion that the defendants, have not raised any objection to the execution proceedings. The court below was also of the opinion that there is no stay granted by the High Court and the defendants are misinterpreting the orders of the Court. Another order was thereafter passed on 30.01.2025 allowing the withdrawal of the execution proceedings. 8. The court below was also of the opinion that there is no stay granted by the High Court and the defendants are misinterpreting the orders of the Court. Another order was thereafter passed on 30.01.2025 allowing the withdrawal of the execution proceedings. 8. It is pertinent to note that all the orders of which the applicants – defendants are to challenge it being illegal and amounting it to be overreaching the court process are of the month of December 2024 and January 2025 whereas, the present application has been filed in the month of April 2025. It is not to say that the application could not have been filed but when this Court, vide order dated 05.12.2023 allowed the liberty to either of the parties to move appropriate application in case of any exigency, it was expected of the appellants - defendants to have taken steps immediately. Also, when the Court below was seized of the execution application, the appellants - defendants did not take any steps let alone bringing it to the notice the execution proceedings. Adverting to the orders passed by this Court, it may be noted that while admitting the appeal, this Court, has issued the notice in the civil application and was made returnable. The said civil application came to be disposed of by order dated 05.12.2023 as quoted hereinabove. Bare perusal of the said order, does not in any manner suggest that there was any stay granted by this Court. All that has been recorded is the statement of the learned advocate for the appellants - defendants that the defendants, are not going to alienate the property in any manner. Clearly, there is no stay of the impugned judgment granted by this Court staying the operation and implementation of the impugned judgment. Mere admission of the matter, would not construe to mean the stay of the proceedings in view of the provisions of Order XLI Rule 5 of the Code of Civil Procedure, 1908 which, reads thus: "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. 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." 9. The provision, clearly states that 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. It further states that the Appellate Court may for sufficient cause order stay of execution of such decree. Sub- rule (3) further provides that no order for stay of execution shall be made under sub-rule (1) or (2) unless the Court making it is satisfied the factors as indicated therein. 10. It further states that the Appellate Court may for sufficient cause order stay of execution of such decree. Sub- rule (3) further provides that no order for stay of execution shall be made under sub-rule (1) or (2) unless the Court making it is satisfied the factors as indicated therein. 10. The orders by this Court do not suggest that there was any stay either conditional or unconditional granted by this Court which aspect, is also not disputed by Mr P. M. Bhatt, learned advocate for the applicants – defendants. 11. It is also argued that undue haste has been shown by the court below in disposing of the application. In absence of any stay, there was no limitation on the executing court not to have decided the application of the plaintiffs more particularly, when the plaintiffs have succeeded in the suit. In absence of any stay granted, the grievance of the applicants-defendants that the orders have been passed overreaching the powers of the Court, is stated to be rejected; however, it would be open for the applicants to challenge the legality and validity of the said orders, if permissible and in accordance with law so also the sale deed executed pursuant to the said orders. In the captioned appeal, the grievance of the applicants cannot be entertained considering the fact that the captioned appeal, is directed against the impugned judgment whereas, the orders have been passed subsequently in the execution proceedings. Considering the nature of the orders passed in the captioned proceedings and in absence of any stay, straightaway filing the civil application seeking direction, would be impermissible and hence, is hereby dismissed, leaving it open to the applicants to take out the proceedings as advised and permissible in law. No order as to costs.