JUDGMENT :

A.K. Rath, J.

The seminal question that inter alia hinges for consideration of this Court is as to whether the learned trial court can entertain an interim application and decide the same when further proceeding of the suit has been stayed by this Court ?

2. The petitioner as plaintiff instituted C.S. No.40/11 in the court of the learned Civil Judge (Sr. Divn.), Malkangiri for declaration of right, title and interest and other ancillary reliefs impleading the opposite parties as defendants. Since the written statement filed by the defendants was not accepted, they filed C.M.P. No.1049 of 2016 before this Court. This Court as an interim measure directed to stay further proceeding of the suit. While the matter stood thus, the petitioner filed an application under Order 39 Rule 1 C.P.C. for temporary injunction. Learned trial court came to hold that the further proceeding of the suit has been stayed by this Court on 21.7.2016 in Misc. Case No.1062 of 2016 arising out of C.M.P. No.1049 of 2016. Since the original suit has been stayed, jurisdiction of this Court ceases to entertain the application.

3. Heard Mr. G.N. Mishra, learned counsel for the petitioner and Mr. P.K. Rath, learned counsel for the opposite parties.

4. The subject matter of dispute is no more res integra. An identical matter came before this Court in the case of Sri Bijay Kumar Agarwalla and another vs. Ramakanta Das, 64 (1987) C.L.T. 540. This Court held thus:-

“4. The solution to the controversy regarding maintainability centres round the question what is the meaning and import of the order of stay further proceedings in the suit passed by the revisional Court. If the order is construed to mean stay of all further proceedings in the suit no matter whether it relates to hearing of the suit or any other collateral matter, then it has to be held that the learned Subordinate Judge took the correct view in the matter. If on the other hand, the order of stay means only stay of hearing of the suit and does not affect jurisdiction of the trial Court which is in seisin of the suit to pass orders in collateral matters, then the application under Order 38, Rule 5 filed by the petitioners before the Court below was maintainable. The point has been considered by different High Courts and there seems to be divergence of opinion amongst them. While the Madras High Court in the case of Chidambaram v. Subramanian, Madhya Pradesh High Court in the case of Madanlal Agarwal v. Smt. Kamlesh Nigam, Mysore High Court in the case of Saburao Vithalrao Sulunke v. Madarappa Presappa Debbennavar, and the Bombay High Court in the case of Khemraj Ratanlal Sancheti and others v. Vasant Madhaose Vyavhare and another, have taken the view that the trial Court retains its jurisdiction to pass interlocutory orders for the purpose of keeping the proceedings alive or for preserving the subject-matter of the dispute or the for protecting the interest of the parties to the suit during pendency of the stay order passed by the appellate or revisional Court, the Patna High Court in the case of Motiram Roshanlal Coal Co.(P) Ltd. v. District Committee, Dhanbad and others, held that an order of stay passed by a superior Court becomes effective immediately after it is passed and it has the effect of suspending the power of the lower Court to continue the proceedings in the case. Any order passed by the lower Court in spite of the order of stay of further proceedings is without jurisdiction. It is necessary to point out here that in the case before the Patna High Court the order passed by the lower Court in contravention of the order of stay of further proceedings was one appointing a commissioner. As such, the order directly related to hearing of the suit and was not one relating to a collateral matter. On the other hand, the cases considered by the Madhya Pradesh and Mysore High Courts arose directly out of applications made under Order 38, Rule 5 of the Code as in the present case. In the case of Chi