B. K. SOMASEKHARA, J.

( 1 ) HEARD both sides.

( 2 ) THE order of the learned subordinate Judge, Markapur in I. A. No. 957 of 1997 in A. S. No. 11 of 1997 dated 29-8-1997 is challenged. Petitioner is the respondent in the appeal whereas respondents are the appellants. Two suits were filed by each of the petitioner and respondents. The suit of the respondents in OS No. 65 of 1991 was dismissed whereas the suit of the petitioner in OS No. 76 of 1991 was decreed by the common judgment of the learned District Munsif, Podili dated 2-4-1997 for permanent injunction in regard to the suit schedule property. In Appeal, stay of the operation of the judgment and decree was sought for. The impugned order is short and small and reads as follows: "counter not filed and requests for further time, rejected. It is represented that item No. 7 in AS No. 9/97 on the file of the Court is the same item as item No. 1 in this appeal. The Court granted stay in IA No. 415/97 in AS 9/97 for all the items in the schedule in that appeal on 28-4-97 and this appeal also in respect of item No. 1 which is same as item No. 7 in AS 9/97. So since stay is already granted in respect of item No. 7 in AS 9/97 in IA 415/97 I deem it fit to grant stay in respect of item No. 1 of schedule property alone: The petitioner further states that he is not concerned with items 2 and 3 of schedule property herein. Petition is allowed accordingly.

( 3 ) THE learned advocate for the petitioner has contended that the order of the learned Subordinate Judge is opposed to law and the factual circumstances in the case, as according to him, while granting the order of permanent injunction by decreeing the suit of the petitioner, the Court had accepted his possession of the suit property and the interference by the other side and by staying the operation of the judgment and decree of the trial Court that finding was incidentally varied without giving reasons or basis to pass the order of stay. Mr. Subba Reddy, learned advocate for the respondents has contended that there is no reasons to interfere with, the order being a discretionary one.

( 4 ) THE impugned order is an illegal one, if not perverse one. It is opposed to law. A decree for permanent injunction presumes the establishment of a right in the plaintiff and interference or impairment, which it should be prevented by means of an order of injunction. The violation may be punished by executing the decree by filing execution petition under Order XXI, Rule 32 C. P. C. Mere filing of an appeal cannot operate as stay of the decree of a Court as it is settled law that a decree of the Court creates vested interest in the party in whose favour the Judgment and decree are rendered. To stay it either by any interim order or final order, the Court of the appellate jurisdiction should afford reasons and give a finding that as on the dale of the interim order or final order, as the case may be, particular party was in possession, the balance of convenience warrants the continuation of possession by such parly and the equities in the case warrants such an order to be passed. The reason being that such vested right had been declared so after trial and after the application of judicial mind by the Court rendering the judgment and decree. That is why a separate and specific provision is made for executing a decree for permanent injunction under Order XXI, Rule 32 CPC thereby making specific that Order XLI, Rule 5 is not applicable to stay the operation of such decree. In other words, when a decree of permanent injunction is issued after recording a finding in favour of a party in possession of the properly, instead of impairing of such a right by the adversary, after reviewing the same in the appellate Court with the materials available in the case records, a fresh order of temporary injunction will have to be issued under Order XXXIX Rule 2 of CPC and not by passing an order of stay under Order XLI, Rule 5 (2) C. P. C. It is said that such an o

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