1. Heard Mr. J.S. Arora, the learned senior counsel for the petitioner and Mr. J.K. Verma, the learned counsel for the respondents.

2. The petitioners preferred this civil miscellaneous petition against the order dated 29.09.2016, passed in Title Appeal No.57 of 2015 whereby the learned Additional District Judge-XIV, Muzaffarpur allowed the petition of the appellants filed under Order XLI Rule 5 of the CPC to stay the further proceeding of Execution Case No.2 of 2015 pending in the court of learned Sub Judge-VII, Muzaffarpur without imposing any condition.

3. The brief facts relevant can be summarized as follows:-

The petitioners filed Title Suit No.69 of 1983 for decree for eviction of the defendants-respondents herein from the suit premises and realization of arrears of rent. The plaintiff set forth his case that the suit premises was leased out by Chaudhary Mahanth Raghunath Das, predecessor in interest of the plaintiff by a lease for a period of ten years from 01.08.1885 to 01.08.1894 at a monthly rent of Rs.25/- in favour of Sri A.N. Stuart described as the Secretary, Station Club, Muzaffarpur. On 17.07.1889 lease in the form of eqdjjh bLrejkjh was executed by Choudhary Mahanth Raghunath Das in favour of the Secretary, Station Club, Muzaffarpur.

The defendants-respondents herein contested the suit primarily on the ground that the suit premises was settled in favour of the defendants by deed of eqdjjh bLrejkjh vide deed dated 17.07.1889 and so the plaintiffs have no right to maintain suit for eviction of the defendants from the suit premises as on the basis of such settlement, the members of Station Club, Muzaffarpur acquired absolute right, title and interest on the basis of said document and made permanent construction thereon by the members of the Club. The plaintiff no.1 was also member of the Club. The father and grandfather of the plaintiff no.1 was also member of the Club. There is no relationship of landlord and tenant between the plaintiffs and the defendants. The Building Controller in House Control Case No.2 of 1955 rejected the case of the plaintiff for eviction of the suit premises. The defendants also took other grounds including the limitation under Section 67 of the Limitation Act, 1963. The suit was decreed. The defendants filed Title Appeal No.57 of 2015 against the judgment and decree dated 30.09.2015 passed in Title Suit No.69 of 1983. The appellants-opposite parties also filed petition for stay of the execution case and the learned appellate court vide order dated 29.09.2016 stayed Execution Case No.2 of 2015 filed for execution of the judgment and decree passed in Title Suit No.69 of 1983.

4. Mr. J.S. Arora, the learned senior counsel for the petitioners submits that the tenant after passing of the decree for eviction is not entitled as a matter of right to continue in the premises merely after filing appeal against the judgment and decree passed in eviction suit. The appellate court is not supposed to pass order of stay in execution case filed for execution of the decree passed in eviction suit in a routine manner. The opposite parties are in possession of the suit premises since 1885 and the suit was filed in the year 1983 but the appellate court without following the principles laid down by the Hon’ble Apex Court for staying the execution case for execution of the judgment and decree passed in eviction suit in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 and the same principle has been reiterated in subsequent judgment in the case of Jai Singh v. MCD, (2010) 9 SCC 385, State of Maharashtra v. Supermax International (P) Ltd., (2009) 9 SCC 772. Mr. Arora further submits that the appellate court can impose a condition and direct the appellant to pay the rent at the market rate after passing of the judgment to the decree holder for staying the execution case under Order 41 Rule 5 CPC and this view has been reiterated time and again but the learned Additiona