The main legal point established is that the pendency of a second appeal does not automatically warrant a stay of execution proceedings, and the High Court's jurisdiction to pass interim orders is contingent upon the admission of the appeal.

ORDER/JUDGMENT (Through Video Conferencing) : – Shri S. K. Shrivastava, learned counsel for the petitioners.

Shri Ravi Rahul, learned counsel for the respondent.

This civil revision under section 115 of Civil Procedure Code has been filed against the order dated 7-3-2020 passed by Civil Judge, Class-II, Lateri, District Vidisha in Execution Case No. 16-A/16/19, by which the Executing Court has stayed the further proceedings of execution case under Order 21, Rule 29 of Civil Procedure Code.

2. It is submitted by the counsel for the petitioners that a verbal prayer was made by the counsel for the respondent that since Second Appeal No. 1040/2019 filed by the respondent is pending before the High Court, therefore, the further proceedings in execution case be stayed in the light of the provisions of Order 21, Rule 29 of Civil Procedure Code. It is submitted that the verbal prayer made by the counsel for the respondent was allowed, and the executing Court by impugned order has stayed the proceedings.

3. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioners that the Second Appeal No. 1040/2019 has not been admitted so far. No interim order has been passed and under these circumstances, the executing Court should not have stayed the proceedings merely on the ground that the second appeal is pending before the High Court.

4. Per contra, the petition is vehemently opposed by the counsel for the respondent. It is submitted that the executing Court did not commit any illegality by staying the further proceedings of the execution case in the light of the pendency of Second Appeal No. 1040/2019 before the High Court. Further, it was fairly conceded by the counsel for the respondent that the Second Appeal No. 1040/2019 has not been admitted so far and there is no stay in the said appeal.

5. Heard the learned counsel for the parties.

From the order-sheets of the Second Appeal No. 1040/2019, it appears that on 16-1-2020, the notices on I. A. No. 118/2020, an application under section 5 of Limitation Act and I. A. No. 117/2020, an application under Order 22, Rule 4 of Civil Procedure Code were issued. Thereafter, on 3-3-2020 fresh process fee was directed to be paid to the legal representatives of Hemraj. The said second appeal is not admitted so far and there is no stay.

6. From the order-sheets of the Second Appeal No. 1040/2019, it is clear that the petitioner No. 1 Hemraj has expired. No steps have been taken by the petitioners to bring the legal representatives of Hemraj on record.

7. Be that as it may.

The copy of the judgment and decree dated 29-9-2016 passed by Civil Judge, Class-II, Lateri, District Vidisha has been placed on record, which shows that the respondent had filed a civil suit against defendant No. 1 Sampat Bai. The petitioners are the legal representative of Sampat Bai. Sampat Bai had filed a counter-claim, which was decreed and the respondent was directed to hand over the vacant possession of Survey No. 599 area 2.251 hectares situated in Lateri, District Vidisha. It appears that the respondent filed an appeal, which was dismissed by Ist Additional District Judge, Sironj, District Vidisha, by judgment and decree dated 9-10-2018 passed in Regular Civil Appeal No. 38A/2016. It appears that the respondent preferred an appeal on 2-4-2019 and since, there is a delay in filing the second appeal, therefore, an application under section 5 of Limitation Act has also been filed. It is undisputed fact that the delay in filing the appeal has not been condoned so far.

8. The Supreme Court in the case of Raghavendra Swamy Mutt vs. Uttaradi Mutt, reported in (2016) 11 SCC 235 has held as under : –

23. The submission of the learned Senior Counsel for the appellant is that Order 41, Rule 5 confers jurisdiction on the High Court while dealing with an appeal under section 100, Civil Procedure Code to pass an ex parte order and such an order can be passed deferring formulation of question of law