JUDGMENT :

V.G. ARUN, J.

1. The petitioner was the plaintiff in O.S. No. 37 of 2014 on the files of the Principal Munsiff's Court, Kollam. The prayer in the suit was for a permanent prohibitory injunction restraining the respondents/defendants from trespassing into plaint B schedule pathway and from taking vehicles through the pathway or parking vehicles therein. The suit was decreed with cost. Aggrieved, the second respondent filed appeal (A.S. No. 86 of 2020) before the Additional District Court-IV, Kollam. While admitting the appeal, the appellate court passed Ext.P3 order, staying the operation of the decree and judgment till the disposal of the appeal.

2. When this original petition came up for admission, it was pointed out that the petitioner had filed I.A. No. 3 of 2021 before the appellate court seeking review of Ext.P3 order. Therefore, by order dated 25.08.2021, the appellate court was directed to pass orders on that interlocutory application. By Ext.P4 order, the appellate court dismissed I.A. No. 3 of 2021, finding that on the facts of the case, an order staying the operation of the judgment and decree is highly essential.

3. Advocate H. Vishnudas, learned Counsel for the petitioner assailed Ext.P3 order by contending that Order XLI Rule 5 of the Code of Civil Procedure, empowers the appellate court to only stay the proceedings and execution of a decree and the court is not clothed with the power to stay the operation of the judgment and decree. It is contended that as per Order XLI Rule 5, mere filing of an appeal shall not operate as a stay of proceedings under a decree, except so far as the appellate court may order and further that, execution of a decree shall not be stayed by reason of an appeal having been preferred. Even stay of execution of a decree can only be for sufficient cause. According to the learned Counsel, the caption “stay of proceedings and of execution” to Order XLI Rule 5 clearly indicates the intention of the legislature. Going by the provision, the appellate court can do nothing other than staying the proceedings under the decree or staying execution of the decree. Moreover, stay of operation of a judgment will have the effect of relegating the parties to the pre-suit stage. To support the contentions, reliance is placed on the following decisions Sulochana Peter vs. Chellamma Swarnamma, 2011 (1) KLT 93 and Harish Premshankar Bhatt and Another vs. Kailasbhai K. Sabaria, 2015 KHC 2887.

4. It is contended that the impugned Ext.P3 order was passed without considering these crucial aspects and the precedents. Even though, the fundamental flaw was brought to the notice of the appellate court by filing I.A. No. 3 of 2021, the learned Judge refused to review the order.

5. Order XLI Rule 5 of CPC reads as under:

“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 - 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