Honble TATIA, J.–Heard learned counsel for the petitioners as nobody appeared on behalf of the respondent, despite service.

(2). The petitioner is aggrieved against the order dated 21.9.2004 by which the executing court allowed the objection petition filed by the judgment debtor under Section 47 CPC and held that despite the fact that the stay petition was dismissed against the execution of the decree by the appellate court (this Court), the decree cannot be executed because of mere pendency of the appeal. The said view was taken by the executing court on the basis of one judgment of the Honble Apex Court delivered in the case of Union of India and others vs. West Coast Paper Mills Ltd. and another reported in (2004) 2 SCC 747.

(3). Brief facts of the case are that the plaintiff/ respondent filed a suit for injunction and for cancellation of the sale deed dated 19.7.1990 against the petitioners and Bachani Devi, Pushpa Devi and Bhoturam etc. In the suit, the petitioners filed counter claim. The respondents suit no.45/1990 was dismissed by the learned Additional District Judge No.1, Hanumangarh vide judgment and decree dated 28.2.2003 and the counter claim filed by the petitioners was allowed and a decree was passed in favour of the petitioners against the respondent for removal of encroachment which was made by the respondent in the north side of the plot in dispute.

(4). The decree was against present respondent Virendra Kumar and hence, he preferred regular first appeal before this Court which is registered as S.B. Civil First Appeal No.69/2003 (Virendra Kumar vs. Suresh Kumar and others). The respondent submitted stay petition also in the said first appeal before this Court but that stay petition was dismissed by this Court despite the fact that the appeal was admitted by same order dated 23.7.2003. However, this Court directed the respondents therein (present petitioners) not to raise any construction over the property in question pending disposal of the appeal. It appears from the said order that so far as decree for removal of encroachment of respondent is concerned, the stay petition was dismissed by this Court and to safeguard the interest of respondent (appellant of appeal no.69/2003), the respondents in appeal no.69/2003 (present petitioners) were restrained from raising any construction over the property in dispute. The present respondent submitted another stay petition in appeal no.69/2003 which was dismissed by this Court vide order dated 18.8.2004.

(5). After dismissal of two stay petitions by High Court against the execution of decree, the respondent submitted objection petition before the executing court seeking stay of the execution proceedings. The present petitioners filed detail reply to the objection petition and pointed out that the High Court has already dismissed the stay petition of the respondent twice against the execution of decree. Despite this fact, the executing court observed that in view of the judgment of the Honble Apex Court in the case of West Coast Paper Mills Ltd. (supra), the appeal is continuation of suit and the decree becomes executable when the appeal is finally decided by the appellate court.

(6). Hence, this revision petition.

(7). Learned counsel for the petitioners vehemently submitted that the court below took some portion of judgment of Honble Apex Court out of the context and held that the decree cannot become executable unless the appeal is finally decided by the appellate court because of the reason that the appeal is continuation of suit. It is submitted that the controversy in the case of West Coast Paper Mills Ltd. (supra) was entirely different and the Honble Apex Court never meant to say that all decrees against which the appeals have been preferred shall remain inexecutable till the appeal is decided by the appellate court nor the Honble Apex Court meant that even if the stay petition is dismissed by the appellate court against the execution of decree, then also, the decree

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