The appellate court correctly dismissed the stay application, affirming the need for the defendant to argue the appeal on merits without unnecessary delays.

Order :

1. The Civil Writ Petition has been filed by the petitioner-defendant(for short ‘the defendant’) against the order dated 18.01.2025 passed by the Additional District Judge, Sawai Madhopur (for short ‘the appellate court’), whereby the appellate court dismissed the stay application filed by the defendant under Order 41 Rule 5 read with Section 151 CPC in Civil Regular Appeal No.64/2024 titled as ‘Ritesh Khatri Vs. Shyam Sundar Khatri’,. Learned counsel for the defendant submits that the plaintiff had filed a suit for mandatory injunction and recovery of mesne profit against the defendant in which the trial court vide judgment and decree dated 19.10.2024 decreed the suit and directed the defendant to hand over the vacant possession of the disputed premises within two months.

2. Learned counsel for the defendant also submits the defendant had filed an appeal against the impugned judgment and decree dated 19.10.2024 passed by the trial court and also filed an application under Order 41 Rule 5 read with Section 151 CPC .

3. Learned counsel for the defendant also submits that the trial court vide order dated 18.01.2025 dismissed the said application while observing that if defendant has ownership in the suit property even after eviction, then possession would be restored.

4. Learned counsel for the defendant also submits that the defendant had strong case in the appeal. So, the appellate court should have stayed the operation of judgment and decree passed by the trial court till the pendency of the appeal. So, the order dated 18.01.2025 passed by the appellate court be set-aside. Learned counsel for the defendant also submits that the defendant is ready to argue the appeal on merits before the appellate court within a month. So, till then, execution of the judgment and decree dated 19.10.2024 passed by the trial court be stayed.

5. Learned counsel for the plaintiff has opposed the arguments advanced by learned counsel for the defendant and submitted that the appellate court has rightly dismissed the stay application filed by the defendant because the defendant had no case in his favour on its merit. So, the present petition being devoid of merit, is liable to be dismissed.

6. I have considered the arguments advanced by learned counsel for the defendant as well as learned counsel for the plaintiff.

7. It is an admitted position that the suit was decreed against the defendant and the trial court vide judgment and decree dated 19.10.2024 directed the defendant to give vacant possession of the disputed premises to the plaintiff within two months. Learned Appellate Court while rejecting the stay application filed by the defendant observed that if defendant has ownership in the suit property even after eviction, then possession would be restored. In my considered opinion, the appellate court has committed any error in dismissing the stay application filed by the defendant. At this stage, the appellate court should have stayed the operation of judgment and decree dated 19.10.2024 passed by the trial court. So, the present petition filed by the defendant deserves to be allowed.

8. Accordingly, the present civil writ petition filed by the defendant is allowed. The operation and execution of the judgment and decree dated 19.10.2024 passed by the trial court is stayed. The appellate court is directed to decide the appeal filed by the defendant on its merit within a month from today. The defendant is also directed to argue the case on its merits without seeking unnecessary adjournments. If the defendant fails to argue the same, then order passed by this court staying the operation and execution of the judgment and decree dated 19.10.2024 passed by the trial court, shall stand vacated automatically.

9. Pending application(s), if any, also stand(s), disposed of.