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2002 Supreme(Mad) 46
High Court of Judicature at Madras
P.K. MISRA
S. Elango
Versus
Special Tahsildar, Adi Dravidar Welfare Dept., Camp at Tirupattur, Vellore
C.R.P. No. 4030 of 2001
Decided On: 31-01-2002
Ms.Krishnaveni, Advocate for Petitioner. No appearance for Respondent.
Mere pendency of an appeal does not automatically stay the proceedings under a decree or order.
Headnote:
Order 41 Rule 5 - Stay of Proceedings - The court held that the mere pendency of an appeal does not automatically stay the proceedings under a decree or order, and the trial court should not reject an application for realization of an awarded amount solely on the ground of the appeal's pendency. The Sub Court is required to re-determine the matter, with the caveat that if a stay order is passed by the Appellate Authority, the Sub Court must follow such order.
Fact of the Case:
The respondent filed an appeal against an award passed by the Subordinate Judge, Tirupattur, enhancing the compensation. The petitioner filed an application for realization of the awarded amount, which was rejected by the court based on the pendency of the appeal in the High Court.
Finding of the Court:
The court found that the trial court should not have rejected the application solely on the ground of the appeal's pendency and that the matter is required to be re-determined by the Sub Court. It was clarified that if a stay order is passed by the Appellate Authority, the Sub Court must follow such order.
Issues: The issue was whether the mere pendency of an appeal operates as a stay of the decree or order, and whether the trial court was justified in rejecting the application for realization of the awarded amount based solely on the pendency of the appeal.
Ratio Decidendi: The court held that the mere pendency of an appeal does not operate as a stay of the decree or order, and therefore, the trial court should not have rejected the application on that ground.
Final Decision: The C.R.P. was disposed of with the direction for the Sub Court to re-determine the matter, with the caveat that if a stay order is passed by the Appellate Authority, the Sub Court must follow such order.
1. The copy of the C.R.P. along with the impugned order was served on the learned Special Government Pleader who accepts notice on behalf of the sole respondent. On the consent of the counsel appearing, the matter is taken up for disposal at the stage of admission. It appears that the respondent has filed an appeal before this court against the award passed by the Subordinate Judge, Tirupattur enhancing the compensation. The present petitioner filed an application for realisation of awarded amount which has been deposited before the Sub Court. Such application has been rejected by the court merely on the ground that appeal against the award is pending in the High Court.
2. Learned counsel appearing for the petitioner submitted that since no stay order was passed by the Appellate Court, the Sub Court should not rejected the application merely on the ground of pendency of the appeal. Order 41 Rule 5 of Code of Civil Procedure is as follows:
“An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.”
3. It is thus obvious that mere pendency of an appeal does not operate as stay of the decree or order. Therefore, the trial court should not have rejected the application merely on the ground of pendency of the appeal. The matter is therefore required to be re-determined by the Sub Court. It is however made clear that in case a stay order is passed by the Appellate Authority, obviously the Sub Court has to follow such order. Subject to such observation, this C.R.P. is disposed of as expeditiously as possible.
