This petition under Article 227 of the Constitution of India has

been filed against the Order dated 21.02.2023 passed by the Civil Judge

Junior Division, District Chhindwara in Execution Case No.08-A/2018 by

which the execution of decree has been kept under suspension animation

on the ground that the second appeal is pending.

2.

The undisputed facts are that a decree for declaration of title,

permanent injunction and delivery of possession was passed in favour of

the petitioner. The appeal filed by the respondents No.2 and 3 was also

dismissed. Second Appeal No.938/2022 has been filed, however it is

undisputed fact that neither said second appeal has been admitted so far

no there is any interim order. The petitioner put the decree for execution

and an application was filed by the respondents under order 21 Rule 29 of

CPC for stay of the execution of decree during the pendency of the

second appeal. By the impugned order the Executing Court has stayed

the execution of the decree on the ground that Second Appeal

No.938/2022 is pending.

3.

Challenging the order passed by the Court below, it is

submitted by the counsel for the petitioner that in absence of any stay in

the second appeal, the Executing Court was not right in staying the

further proceedings.

3 M.P.No.1860/2023

4.

Per contra, it is submitted by the counsel for the petitioner that

the Execution Court has wide jurisdiction under Order 21 Rule 29 of CPC

and therefore has not committed any material irregularity.

5.

Heard the learned counsel for the parties.

6.

The undisputed fact is that S.A.No.938/2022 is pending before

the High Court. The said appeal has not been admitted so far and

therefore there is no question of any stay. The Supreme Court in the case

of Raghavendra Swamy Mutt Vs. Uttaradi Mutt, reported in

(2016)11 SCC 235 has held that unless and until substantial questions of

law are formulated, the High Court does not have any jurisdiction to pass

any interim order.

7.

Furthermore, Order 41 Rule 5 of CPC provides that mere filing

of an appeal would not operate as a stay. Thus what cannot be done by

the High Court can also not be done by the Executing Court under Order

21 Rule 29 of CPC. If the High Court has no jurisdiction to pass any

interim order unless and until substantial questions of law are formulated,

the power to stay the execution of the decree cannot be usurped by the

Executing Court under Order 21 Rule 29 of CPC.

8.

Accordingly, this Court is of the considered opinion that

Executing Court committed material illegality by staying further

proceedings of the Execution proceeding.

9.

Accordingly, the Order dated 21.02.2023 passed by the Civil

Judge Junior Division, District Chhindwara in Execution Case No.08-

A/2018 is hereby set aside.

10.

The trial Court is directed to proceed further with the Execution

Court. However, this direction shall be subject to any interim order

4 M.P.No.1860/2023

which may be passed in the second appeal after formulation of substantial

questions of law.

11.

With the aforesaid observation, the petition is finally disposed

of.

(G.S. AHLUWALIA)

JUDGE

vinay*

Digitally signed by VINAY KUMAR BURMAN

Date: 2023.05.10 18:14:58 +05'30'