The court clarified that summoning original records does not stay execution, emphasizing that only photocopies should generally be retained to avoid delays in proceedings.

JUDGMENT :

Kshitij Shailendra, J.

ON THE ISSUE OF SUMMONING VIS-A-VIS RETAINING OR RETURNING THE ORIGINAL RECORD

1. Shri Sumit Daga, learned counsel for the respondent, raised an issue which prima facie appears to be quite small, but has a significant value. The matter is being treated as of general importance qua a limited issue that is coming up before this Court in many cases.

2. The case was mentioned in the morning, not for the purposes of its hearing as the time constraints otherwise do not allow hearing of the matter today, but making a prayer as regards return of the original record of the first Appellate Court and the trial court which, earlier, had been summoned by this Court without admitting the appeal.

3. Referring to the order dated 19.01.2018, it is contended that, till today, the instant appeal has not been admitted but the Court had summoned the original record seven years ago, and, on 07.03.2019, an order was passed to the effect that mere pendency of appeal would not mean passing of any interim order staying execution of decree. Submission is that the matter is being adjourned for last several years and though the appeal has not been admitted, since the original record is lying before this Court for hearing on admission, the execution proceedings are held up. He requests the Court to remit back the original record to the District Judgeship.

4. It is quite common and part of proceedings of this Court that whenever this Court summons the record of the proceedings of sub-ordinate court, particularly those decided finally, it is done so as to facilitate consideration of the matter before it, either for admission or for final hearing. Reason is that the Court wants to peruse the documents forming part of the record of sub-ordinate Court. Therefore, irrespective of the fact that the appeal or revision has or has not been admitted, summoning the original record would create some unforeseen problems.

5. Legislative mandate contained under Order XLI Rule 5 of Code of Civil Procedure or U.P. amendments made in Section 115 of C.P.C. is clear to the effect that mere filing of an appeal or revision would not operate as stay against the proceedings. The said provisions are quoted for a ready reference:-

Order XLI Rule 5 of Code of Civil Procedure

"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 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."

Sub-Section (4) of Section 115 of Code of Civil Procedure (U.P. Amendment)

"(4) A revision shall not operate as a stay of suit or other proceedings before the court except where such suit or other proceedings is stayed by the superior court."

6. By virtue of Order XLII Rule 1 of Code of Civil Procedure, 1908, provisions of Order XLI are also made applicable to appeals from appellate decrees and, hence, Rule 5 of Order XLI would also apply to second appeals. It is quoted hereunder:-

"1. Procedure - The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees."

7. Similarly, vide Order XLIII Rule 1 of Code of Civil Procedure, 1908, provisions of Order XLI are also made applicable to appeals from orders and, hence, Rule 5 of Order XLI, as quoted above, would also apply to appeals from orders.

8. In this regard, this Court called for relevant circular/notification etc. from the office of this Court so as to understand as to on wha