( 1 ) BY this civil application, prayer has been made by the original defendants No. 1, 2 and 3, the applicants herein, for stay of the judgment and decree dated 31-3-1995 of Civil Judge (S. D.), Navsari in special Civil Suit No. 58/87. This Civil Suit has been filed by the plaintiff-respondent No. 1, Ketan Babubhai Shah, against the defendants-appellants for recovery of Rs. 56,771-51 ps. Learned trial Court under the impugned judgment and decree, decreed the suit of the plaintiff-respondent No. 1 for Rs. 39,544/- against the defendants-appellants and other defendants. All the defendants, which includes the appellants herein, were held jointly and severally liable to pay the decretal amount to the plaintiff-respondent No. 1.

( 2 ) LEARNED counsel for the applicants vehemently contended that the suit filed by the plaintiff-respondent No. 1 was barred by limitation. The plaintiff-respondent No. 1 has not given out the date on which the loan has been given to the defendants-appellants. Even it is not disclosed what was the amount given as loan to the defendants-appellants. Carrying this contention further, learned counsel for the applicants contended that the learned trial Court has taken the suit to be within limitation by resorting to provisions of Section 18 of the Limitation Act, which is wholly illegal, erroneous as the plaintiff-respondent No. 1 has failed to give out the date on which the loan has been given and the amount of loan given, there is no question of any acknowledgment thereof.

( 3 ) I have given my thoughtful consideration to the submissions made by the learned counsel for the applicants.

( 4 ) THE appeal is admitted. As the appeal has been admitted though the learned counsel for the applicants has raised the contentions on merits, I do not consider it to be appropriate to give any final decision on these contentions otherwise it will affect the merits of the appeal itself. While deciding the application filed for grant of interim relief, the Courts should refrain from deciding the issues involved in the appeal finally. Be that as it may. The admission of the appeal, it is given out that this Court has found that the matter deserves consideration but it cannot be taken as if that the decision of the trial Court is reversed or it has to be reversed. Ultimately on final hearing of the appeal, the Court may allow the appeal or may also dismiss the appeal where it is held that the judgment does not suffer from any illegality or any infirmity. So by admission it can be taken only that the Court prima facie found that the case needs consideration. Nothing finally can be said regarding the legality, propriety and correctness of the impugned judgment and decree of the learned trial Court. It is not in dispute that the judgment and decree is passed in a money suit. It is a money decree which has been passed in favour of the plaintiff-respondent No. 1 and normally this Court should refrain to grant the stay of its execution even if it is taken that by admission of the appeal, the applicants-appellants have made out a prima-facie case. Merely on this ground, the stay of the operation of the decree passed in favour of the plaintiff-respondent No. 1 cannot be ordered.

( 5 ) ON this civil application, I do not find under which provision of the C. P. C. the same has been filed. In this Court, invariably the litigants are not mentioning the provision of the relevant Act under which the application has been filed. It would have been better that the application should contain the provision under which the same has been filed. Be that as it may. Order 41, Rule 5 of C. P. C. , 1908 makes a provision for stay by appellate Court. Sub-rule 1 of Rule 5 of Order 41 of C. P. C. provides 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. This Rule further lays down that the execution of decree shall not be stayed by reason only o