An order of stay of execution cannot be entertained until the delay in preferring the appeal is condoned and the appeal is admitted under Order 41 Rule 11.

JUDGMENT

M.M. DAS, J.

The backdrop of facts leading to the present case are that, the husband of Petitioner No. 1 as Plaintiff, filed Title Suit No. 1100 of 1993-1 before the Learned Civil Judge (Junior Division), Balasore seeking a decree for declaration of his right, title, interest & for eviction of the present opposite who are Defendants in the said suit. During pendency of the suit, the original Plaintiff having expired, the present Petitioners were substituted in his place.

2. The Opp. Parties appeared in the said suit & filed their written statement. But subsequently, they were set ex-parte & the suit, after being heard, was decreed ex-part by Judgment passed' on 24.01.2005 with a direction to the Opp. Parties Defendants to vacate the suit premises. After passing of the ex part Judgment & decree, the present petitioners levied Execution Case No. 6 of 2005 to execute the decree. The Opp. Parties-Defendants, who are the Judgment debtors in the execution case, appeared in the said case & filed an application under Section 47 of the Code of Civil Procedure questioning the executability of he decree. However, they did not pursue said petition. The Learned executing Court issued writ of delivery of possession to deliver possession of the disputed property to the Petitioners. The Civil Court Commissioner, who was directed to deliver possession of the suit property to the Petitioners, went to the spot the purpose of executing the writ of delivering of possession of 06.03.2012, but the Opp. Parties resisted him from executing the decree, for which the Commissioner submitted a report before the executing Court & prayed for necessary police held. The Petitioner as the decree holders also filed a petition on 12.03.2012 before the executing Court to render police for execution of the decree, which was allowed by the Learned executing Court.

3. While the matter stood thus, the Opp. Parties Judgment debtors filed a petition under Order 9, Rule 13 C.P.C. in the suit registered as C.MA No.43 of 2012 to set aside the ex-parte decree. They also filed an application to stay further proceeding of the Execution Case No. 6 of 2005 till disposal of the application under Order, 9 Rule 13 C.P.C. The said application for stay was heard by the Learned Court below on 20.03.2012 & was fixed for delivery of order to 22.03.2012 on 22.03.2012, the Opp. Parties produced a copy of the order the Learned District Judge, Balasore passed in R.F.A. No. 44 of 2012, by which the further proceeding of the execution case was stayed. On such happening, the Learned Trial Court observed that since further proceeding in the execution case has been stayed by the Learned District Judge in the appeal, there is no necessity to consider the application filed for stay of the execution case.

4. Miss Mishra, Learned Counsel for the Petitioners submits that on the said date, i.e., 22.03.2012, the Petitioners for the first time could come to know that the Judgment debtors Opp. Parties have filed a regular First Appeal against the exparte Judgment passed in the suit along with an application for condonation of delay & for stay. She further submits that though the Petitioners lodged a Caveat before the Learned District Judge, lest the Opp. Parties do not obtain any order of stay by filing an appeal, copy of the appeal memo not the stay petition was served on the Learned Counsel for the Caveator before the Learned District Judge. Coming to know about the exparte order stay by the Appellate Court, the petitioners appeared in the said appeal before the Learned District Judge & filed & application on 27.03.2012 to advance the date fixed by the Appellate Court & to recall the exparte order of stay passed on 21.03.2012. The ground stated in the application are as follows:-

"(a) No copy of the appeal memo application for condonation of delay & stay application was offered to be served on Mr. Shantanu Kumar Panda. Advocate after the appeal was filed:

(b) The stay orders as appears to have been