JUDGMENT :

Learned counsel for the petitioner, at the outset, has sought for leave of this Court to delete the provision of Article 226 of the Constitution of India, under which, also the jurisdiction of this Court has been invoked apart from Article 227 of the Constitution of India.

2. It has been submitted that since the judicial order is under challenge, as such, the writ petition ought to have been filed only under Article 227 of the Constitution of India under its supervisory jurisdiction but due to inadvertence Article 226 has also been inserted along with Article 227.

3. This Court after considering the aforesaid submission deem it fit and proper to accord such liberty to the petitioner.

4. In view thereof, the petitioner is directed to make necessary correction in the cause title of the writ petition by deleting Article 226 of the Constitution of India.

5. The order dated 13.05.2019 passed in Civil Appeal No.20 of 2018, by which, petition filed under Order 41 Rule 5 of the CPC, has been rejected.

6. The brief facts of the case as per the material available on record is that respondent no.1/plaintiff has instituted a suit being title suit no.65 of 2005 with a prayer that a decree of declaration passed declaring defendant as liable and bound to execute the registered sale deed for the suit property under the specific performance of contract under Specific Relief Act.

The plaintiff and defendant namely Harold Anand Kumar Mundle have entered into an agreement on 02.06.2003 of sale which is admitted by the petitioner/appellant in his written statement at para-12 and he has also agreed to execute the sale deed in the name of the plaintiff without permission being taken from the trial Court and during pendency of the suit, the respondent no.2 has executed and registered a sale deed in favour of the appellant of Title Appeal No.20 of 2018.

The decree holder has filed an execution case being Execution Case No.01 of 2018. The plaintiff/judgment debtor/appellant has filed a petition under Order 41 Rule 5 on 09.07.2017 as also the supplementary petition on 24.04.2019 stating therein that the appellant since has preferred an appeal against the judgment and decree dated 23.02.2018 on 12.03.2018 passed in Title Suit No.65 of 2005 and as such, the prayer for grant of ad-interim stay has been sought for but the same has been rejected vide impugned order, therefore, the same is under challenge in this writ petition.

7. Mr. Rahul Kr. Gupta, assisted by Mr. S.R. Soren, learned counsel for the petitioner has submitted by referring to the scope of Order 41 Rule 5 of the CPC which has been incorporated under the statute for stay of execution, if the Court is satisfied that substantial loss may result to the party, applying for stay of execution, unless the order is made, application has been made without unreasonable delay and the security has been given by the applicant for due performance of such decree or order as may ultimately be binding upon him and according to the petitioner all three conditions as provided under the said provision, is available but even then the petition has been rejected.

Further submission has been made that the petitioner has got prima-facie case as also balance of convenience lies in his favour and if ad-interim stay would not be passed, he will suffer irreparable loss.

8. According to the petitioner, he has got prima-facie case as because as per the plaint itself, the ingredients for suit for specific performance is not being attracted and that is the ground of appellant for assailing the order passed by the trial Court.

9. This Court has heard the learned counsel for the petitioner and after going across the material available on record, deem it fit and proper to first deal with the statutory provision along with the position of Law in granting ad-interim stay before delving into the legality and propriety of the impugned order.

The first provision which needs to refer herein as contained under Order 41 Rule 5 which read a