The executing court does not have jurisdiction to grant stay of execution simply on the ground that appeal is pending.

( 1 ) THE defendant-petitioner had preferred a second appeal against the decree for realisation of certain sums passed in Original Suit No. 150 of 1979, which was affirmed in first appeal. In the second appeal his application for stay of execution is pending. In the meantime the decree holder has put the decree for execution in Execution Case No. 6 of 1996. In the said execution proceeding the petitioner had applied for stay of the execution on the ground of pendency of appeal. The said application had been dismissed by order dated 19. 12. 1997. Against the said order he had preferred a revision being Revision No. Nit of 1998, which was also dismissed by order dated 22. 4. 1998. It is also submitted that he has filed another stay application which was also dismissed on 5th May, 1998. Sri K. K. Tripathi, learned counsel for the petitioner assails these orders in the present writ petition.

( 2 ) AFTER having heard Sri K. K. Tripathi, learned counsel for the petitioner I find that the contention of Sri Tripathi cannot be sustained. Order XLI, Rule 5 of the Code prescribes for obtaining stay, when the appeal is preferred. Rule 5 of the Code specifically provides that mere filing of appeal would not operate as stay. Therefore, specific order of stay is to be obtained from the appeal court. It is the discretion of the Court passing decree to grant stay. But after the decree is put into execution, the Court that had passed decree, cannot grant stay.

( 3 ) THE jurisdiction of the Court , that had passed the decree, to grant stay is limited to the extent as circumscribed under Order XLI. Rule 5, sub-rule (2) of the Code of Civil Procedure. It can exercise such jurisdiction only when applied to it before the expiry of the period of limitation for preferring an appeal. Once the period of limitation for preferring appeal is expired the Court, that had passed the decree, ceases to have jurisdiction to grant stay. This is explicit from sub-rule (2)which runs as follows : "where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. "

( 4 ) THE above view finds support in the case of Ishan Chander v. Ashanoollah, 1984 ILR 10 Cal. 817 and Amir Hassan v. Ahmad Ali, 1987 ILR 9 All 36.

( 5 ) FROM the scheme of the provisions as available in Order XLI, Rules 5 and 6 relating to stay it appears that it is only appellate court which can pass an order of stay as soon an appeal is filed, since it is the appellate court which is seized of the matter.

( 6 ) THIS view is supported by the decision in the case of Purshottam v. Hargu, AIR 1921 All 342 : 1921 ILR 43 All 198.

( 7 ) NORMALLY the Court that passes the decree, is the executing court. If the Court passing the decree is deprived of its jurisdiction to grant stay of execution, it cannot assume same jurisdiction while executing the decree. It would then be subversion of Order XLI, Rule 5, sub-rule (2) of the Code of Civil Procedure.

( 8 ) THE executing court cannot pass stay simply on the ground that appeal is pending unless stay order is granted in the appeal. Sri Tripathi, has not been able to draw my attention to any of the provisions, which empowers the Court to grant stay simply on the ground of pendency of appeal on the face of Order XLI, Rule 5, sub-rule (1) of the Code which specifically provides that filing of appeal would not operate as stay.

( 9 ) MY above view is supported by the Scheme of the procedure laid down for grant of stay when an appeal is about to be filed or has been filed as provided in Order XLI, Rules 5 and 6 respectively. Rule 5 empowers the Court, that passed the decree, before the expiry of limitation, and the appeal court, after an appeal is preferred, to grant stay. But it had omitted to refer to the executing court and to empower it with any such jurisdiction. The omission