The power of stay under Order XLI rule 5 of the Civil Procedure Code cannot be controlled by Section 41 (b) of the Specific Relief Act.

( 1 ) HEARD counsel for the petitioner and Sri Mithlesh Kumar Tiwari appearing for the respondents No. 1 and 2. Both the counsels have agreed that the writ petition be disposed of at this stage without inviting counter affidavit. Learned counsel for the petitioners at the very outset has submitted that his prayer be confined only for quashing the order dated 21. 4. 2006 passed by the Additional District Judge, bijnore rejecting the application of the writ petitioner filed in the of Appeal before the district Judege, Bijnore.

( 2 ) A suit No. 393 of 1996 was filed by the respondents seeking a decree for permanent injunction and for cancellation of an agreement to sale dated 14. 8. 1996. The trial Court vide its judgement and decree dated 6. 4. 2006 decreed the suit. The relief of permanent injunction was granted in favour of the plaintiff with regard to disputed shops as described in List A and B of the paint. The defendants were restrained from interfering with the possession of the plaintiff. The agreement to sale dated 14. 8. 1996 was declared as void and inoperative. The trial court further ordered that the plaintiff will be at liberty to take appropriate steps for taking possession of the shops in question. The counsel for the petitioners has submitted that both the shops in question are under attachment under Section 145 of the criminal Procedure Code and neither the plaintiffs nor the defendants are in possession.

( 3 ) THE learned counsel for the respondents has supported the order passed by the learned District Judge.

( 4 ) AN appeal has been filed by the petitioners before the appellate court against the aforesaid judgement and decree. In the appeal an application 6-C for staying the judgment and order of the trial Court was also made. The appellate court heard the application for 6-C stay of the judgment of the trial Court and has rejected the stay application. Learned counsel for the petitioners challenging the order has submitted that the only reason given by the appellate court in rejecting the application is Section 41 (b) of the Specific Relief Act, 1963. Learned counsel for the petitioners submits that Section 41 (b) of the said Act has no application and the said provisions could not be a ground for rejecting the application filed by the plaintiffs for the stay of the judgment of the trial Court.

( 5 ) FROM perusal of the judgment of the appellate court it appears that since the trial court by the decree has given liberty to the plaintiffs to take appropriate steps for seeking possession of the shops in question, the appellate court proceeded under impression that any stay order granted in the appeal will be in violation of Section 41 (b) since the stay will be stooping the plaintiff in the court of the Sub Divisional Officer where the plaintiff may make an application for possession of the shops. The appellate court observed that the court of Sub Divisional Officer is not subordinate to the District judges court hence provisions of Section 41 (b) is squarely applicable.

( 6 ) I have considered the submissions of counsel for the parties and perused the record.

( 7 ) SECTION 41 (b) of the Specific Relief Act is to the following effect :-

"41. Injunction when refused. An injunction cannot be granted. (b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought"

( 8 ) IN the present case the application which was filed by the writ petitioner was an application under Order XLI rule 5 of the civil Procedure Code. Under Order XLI rule 5 C. P. C. the appellate court is empowered to stay execution of the judgment and decree of the trial Court. The Order XLI rule 5 of the Code of Civil Procedure is extracted below :-

"5. Stay by Appellate Court (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as he Appellate court may order, nor shall execution of a decree be stayed by reason only

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