1. - Heard on the question of grant of stay applied by the appellant s ( writ petitioners).

2. Having heard the learned counsel for the parties and on perusal of the record of the case, we are of the considered opinion that no case is made out for grant of any stay or/and ad-interim writ in favour of appellants in relation to the subject matter of properties during pendency of the appeal for more than one reason.

3. In the first place, the revenue suit out of which this writ appeal arises was filed by the plaintiff (respondent) before the revenue court only for seeking a declaration of their share in the suit properties and the same having been granted to the plaintiff (respondents), there is nothing for this Court to stay in such matter. In other words, since the impugned decree, which is now subject matter of this litigation, is only a declaratory decree passed in favour of the plaintiff s and hence there is no question of staying such declaratory decree. It being a settled principal of law that declaratory decrees are not executable but they are in the nature of declaration only which declare the rights of the parties in the suit property, there arise no question of its execution against the defendants (appellants/writ petitioners). In the light of this settled principal of law, there is no case for grant of any stay of execution of such declaratory decree.

4. Learned counsel for the appellant then contended that respondents (plaintiffs) on the strength of impugned declaratory decree may transfer the suit land to any third person. Suffice it to say that firstly no such details are mentioned in the application that respondents are likely to or have decided to sell their share in the suit property. Secondly Section 52 of the Transfer of Property Act does apply to every transaction, and takes care of parties interest that is executed during pendency of the lis and hence the rights of the parties would always be subject to the final decision of this litigation. In other words, even if any party transfer their share in the suit property during pendency of this litigation then it would be hit by principal of lis-pendence as provided in Section 52 ibid. It is for this reason no restrain order as such is called for at this stage against the respondents.

5. Learned counsel for the respondents placing reliance on the decision reported in 2009 (10) SCC 584 Ashok Jha v. Garden Silk vehemently contended that this intra court appeal is not main tenable because it arises out of an order passed by the writ court under Article 227 of the Constitution of India. Learned Counsel thus argued that this court should dismiss this appeal on this short ground. Suffice it to say, this objection would be dealt with and decided only at the time of final hearing of the appeal and not at this stage. We however only wish to observe since the respondents counsel insisted for verdict on this issue that it is one thing to say that appeal is not main tenable due to any statutory bar created in law for its very filing and it is another thing to say that due to exercise of power exercised by the writ court in any particular case under Article i.e 227 of Constitution, the appeal is not maintainable against such order on the strength of decided case law. The case in hand falls in the later category of the case and hence such objection can be decided only with reference to the factual aspect of the case, and then having regard to the factual matrix and the extent of power exercised by the writ court namely whether it was under Article 226 or under 227 or under both, this court will be able to record a definite finding as to whether this appeal should be held maintainable or not? At the time of deciding the stay application, this objection cannot be entertained much less decided by dismissing the appeal as being not maintainable once it is admitted for final disposal.

6. In the light of forgoing discussion, the application made by the appellants (writ petitio