A court cannot grant a stay of execution without considering sufficient cause or obtaining security, as required by O. 41, R. 5 of the CPC.

1. In a suit for recovery of Rs. 6,381.95 Paise on account of arrears of rent and interest up to 10.06.1973, and for ejectment, a decree for ejectment and for recovery of Rs. 6,082.10 Paise was granted by the trial Court. In the tenant s first appeal against the decree of the trial Court, an application was moved by him under O. 41, R. 5 of the Civil P. C. (hereinafter referred to as the Code) for staying of execution. The final order by which that application was disposed of was passed by Mr. Shiv Dass Tyagi, Additional District Judge, Hissar, on June 7, 1976. This is what he said in that order:-

"Counsel for the respondent submits that the appellant be called upon to pay the decretal amount before the continuance of the stay is extended. Appellant s counsel submits that out of the money decree, appeal filed by him extends to Rs. 3,452/-. The trial Judge had granted decree with interest amounting to Rs. 596/-. Considering all the circumstances, the appellant is directed to deposit within two months from today Rs. 3,000/- in the trial Court, which will be paid to the decree holder. The decree holder would have the right to execute his decree for the amount for which appeal has not been filed. In view of the circumstance that the appellant has been directed to deposit Rs. 3,000/- so in the event of the deposit, the execution of the decree remains stayed. In the event of default in deposit of the amount by the time given above, the stay of the execution of the decree would stand vacated."

2. Mr. G. C. Mittal, learned counsel for the petitioner, who has forcefully assailed the order of the lower appellate Court, has submitted that the order under revision neither discloses any finding of a sufficient cause for staying the execution of the decree which is a condition precedent for the exercise of jurisdiction under sub-r. (1) of R. 5 of O. 41 of the Code nor conforms to the mandatory requirements of Cl. (c) of sub-r. (3) of R. 5 of O. 41 of the Code. Sub-rule (1) and sub-r. (3) of R. 5 of O. 41 of the Code read as below:-

"5 (1). 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."

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"5(3). No. order for stay of execution shall be made under sub-r. (1) or sub-r. (2) unless the Court making it is satisfied- (a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) that the application has been made without unreasonable delay, and

(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him."

I have no hesitation in agreeing with Mr. G. C. Mittal that after merely quoting the amount for which the decree has been granted by the trial Court and taking into consideration the fact that the appeal has been preferred only against a part of the decree, if an appellate Court straightway passes the final order under O. 41, R. 5 of the Code by saying that it is doing so after considering all the circumstances such an order does not disclose an application of mind and does not show that the Court has been satisfied of any "sufficient cause" for staying the execution of the decree. The rule is that mere preferring of an appeal against a decree does not operate as stay. Nor can stay be granted merely because an appeal has been preferred. The exception to the rule is the grant of specific order of stay if sufficient grounds for adopting that course are established. A further statutory safeguard has been provided in Cl. (c) of sub-r. (3) of R. 5 of O. 41 of the Code that no order for stay of execution shall be made even if there is sufficient cause for doing so unless security has been given by the applicant for the due perfor