( 1 ) THE revision is filed against the order dated 20. 7. 2001 passed by the court of Senior Civil Judge, Kovvur in i. A. No. 865 of 2001 in A. S. No. 31 of 2001.

( 2 ) THE plaintiff in O. S. No. 218 of 1995 on the file of the Court of Principal Junior civil Judge, Kovvur, is the petitioner herein. The above suit was filed for declaration of easementary right and for consequential perpetual injunction. The trial Court after considering the respective contentions of the parties decreed the suit by judgment and decree dated 14. 6. 2001; against which appeal - A. S. No. 31 of 2001 - has been filed by the defendant, respondent herein. He had also filed an application in I. A. No. 865 of 2001 for stay and suspension of the execution of the decree dated 14. 6. 2001 in o. S. No. 218 of 1995. The appellate Court, after considering the matter, allowed the said application by order dated 20. 7. 2001; against which, the present revision has been filed.

( 3 ) AT the outset, the learned Counsel for the petitioner submits that the very grant of slay of the injunction decree is illegal and contrary to the provisions laid down under Order XLI, Rule 5 of the Civil procedure Code and in support of his contention, he has relied upon the judgments of this Court in Pothura Venkata Rama raju v. Yamlra Venkata Namsayya, 1097 (5) ALD 574 and Pokala Polaiah v. Pokula avulaiah, 1998 (1) ALD 251. He further submits that the decree for perpetual injunction is not an executable decree and, therefore, the question of either staying or suspending the said decree would not arise and that, therefore, the impugned order is illegal and without jurisdiction.

( 4 ) MR. M. V. Durga Prasad, the learned Counsel for the respondent, submits that the impugned order passed by the lower appellate Court is quite legal and justified and that the decree passed by the trial Court is an executable decree. In support of his contentions, he relied upon the decision of a learned single Judge of this Court K. Ramaswamy, J (as he then was) rendered in M. Ramachamdra Ruddy v. Janaki, 1984 (1) ALT 387 and the decision of the Supreme Court in Moo/ Chand Yadav v. Raza Buland Sugar Co. . Ltd. , Rampur\ (1982) 3 SCC 484.

( 5 ) THE issue that falls for consideration is as to whether the impugned order granting stay of execution of the injunction decree in O. S. No. 218 of 1995 on the file of the Principal Junior Civil Judge, Kovvur is tenable in law?

( 6 ) FOR deciding the above issue, it is necessary to refer to Order XLI, Rule 5 of civil Procedure Code, which reads thus:"r. 5 Stay by appellate Court :-- ( 1) An appeal shall not operate as a slay of proceedings under a decree or order appealed front except so far as the Appellate Court may order, nor shall execution of a decree he 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. (2) 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 (I) 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 lo the provision 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 falls lo make the deposit or furnish the security specified in sub-rule (3) of Rule I, the Court shall not make an order stayi