The appellant has filed this appeal against the order of the Revenue Appellate Authority, Jaipur dated 19th July, 1963 issuing notice to the respondent to show cause why stay of execution of the decree should not be granted in an appeal filed by the appellant before the Revenue Appellate Authority against the decree and judgment of the Assistant Collector, Kishengarh dated the 15th July, 1963 decreeing the respondents suit for ejectment of the appellant as trespasser over the suit land.

A preliminary objection was raised by the counsel for the respondent that the appeal was not maintainable as the order appealed against is not appealable. In the first instance order refusing the stay of execution by the appellate court under order 11 Rule 5 of the Civil Procedure Code is a discretionary remedy and no appeal lies against the refusal of such order. In support he cited A.I.R. 1943 Nagpur page 282, A.I.R. 1939 Bombay page 65. Further the counsel pointed out that under order 41 Rule 5 sub-rule 3 that unless certain mandatory conditions are served such as substantial loss incurring to the party, filing an application without unreasonable delay, and furnishing of security, no stay order is

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