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 for protecting the interest of the parties to the suit during the pendency of the stay order passed by the appellate or revisional court.

JUDGMENT :

D.P. Mohapatra, J. - The Plaintiffs in Money suit No. 3 of 1983 pending in the Court of Subordinate Judge, Baripada filed this petition u/s 115, CPC (for short 'the Code') seeking to assail the order dated 30th of August, 1986 rejecting their application under Order 38 Rule 5 read with Section 151 of the Code.

2. The Petitioners filed the aforementioned suit against the opposite party for realisation of Rs. 1,650/- from his towards arrear house rent till 30th September, 1982, and compensation for unauthorised occupation from 1.10.1982 at the rate of Rs. 5/- per day amounting to Rs. 570/- till filing of the suit and for other consequential reliefs. The suit was decreed ex parte against the opposite party. On his application under Order 9, Rule 13 of the Code, the Court below set aside the ex parte decree subject to payment of cost with a further direction that the Defendant would file his written statement within thirty days. Having failed to file the written statement within the time granted by the Court the written statement of the Defendant was not accepted. Against the said order of the trial Court he filed Civil Revision No. 91 of 1986 before this Court has passed the order directing stay of further proceedings in the suit. Communication of the stay order was received by the trial Court on 28.2.1986 as appeared from the discussions in the impugned order. Thereafter on 25.4.1986 the Petitioners filed a petition u/s 151 and Order 38 Rule 5 of the Code with the prayer to direct the opposite party to deposit the entire arrear dues as claimed in the plaint and to further deposit day to day compensation arising thereafter or to pass an order for attachment of his movable. The Petitioners alleged, inter alia, that the opposite party who has no immovable property at Baripada and earns his livelihood by private service in a shop and by doing some small business, is likely to leave the jurisdiction of the Court in order to avoid payment of decreetal dues which is likely to be passed against him.

The opposite party in his objection to the petition filed by the Petitioners while denying generally the allegations made in the petition took the stand that in view of the order of stay passed by this Court in the revision petition filed by him, the trial Court had no jurisdiction to entertain the application under Order 38 Rule 5 of the Code. The learned Subordinate Judge on consideration accepted the objection raised by the opposite party and rejected the application filed by the Petitioners holding that it was not maintainable during subsistence of the order of stay passed by this Court. The Court also considered the application on its merit and held that no case for attachment before judgment under Order 38 Rule 5 of the Code was made out in the facts and circumstances of the case.

3. The learned Counsel for the Petitioners challenged the findings of the Court below on both aspects, that is, maintainability of the application as well as its merit. On the question of maintainability, the contention of the learned Counsel was that the order of stay of further proceedings meant further proceedings for trial of the suit and the said order did not affect jurisdiction of the trial Court to pass interlocutory orders for the purpose of keeping the proceedings alive. On the other aspect, he contended that the Court below did not consider properly the allegations made in the petition filed by the Petitioners. The learned Counsel for the opposite party on the other hand supported the order passed by the Court below.

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