21/04/2022

Petitioner has filed this writ petition under Article 226 of the

Constitution of India challenging order dated 10.11.2021 contained in

Annexure-P/1.

2.

By impugned order dated 10.11.2021 contained in Annexure-P/1,

appellate Court has stayed order of injunction.

2 W.P. No.27014/2021

3.

Counsel appearing for petitioner submitted that order of

appellate Court suffers from illegality and is without jurisdiction. It is

submitted that appellate Court cannot pass order of stay over grant of

injunction. Counsel appearing for petitioner relied on judgment

reported in (1997) 5 ALT 776, in case of Pothuru Venkata Rama Raju

Vs. Yandra Venkata Narsayya and others. He relied on para 9 of the

said judgment which is quoted as under:-

“9. It has to be borne in mind that there is any

amount of difference between a decree for

recovery of money or a decree for possession on

one hand and a decree for perpetual injunction on

the other. In the former cases, the decrees are

executable and whenever an appeal is filed, interim

stay is granted with a view to maintain the status

quo between the parties. Order 41 Rule 5 C.P.C.

empowers an appellate Court to pass such an order

in respect of such decrees. Whereas in the latter

cases, the decree comes into force the moment it is

pronounced by the trial judge and there is no

question of stay of such a decree. It is noteworthy

that in cases of decree for perpetual injunction it is

the contravention if any that becomes executable

and it is the act of disobedience of the decree that

gives rise to cause of action for invoking Order

XXI Rule 32 C.P.C. Otherwise there is no question

of executing such a decree unlike in the former

cases. To dilate further in all decrees for possession

or demolition of structures or payment of money,

when once the decree is executed it will be difficult

to restore the parties to the previous position and

there is every likelihood of third parties' interests

3 W.P. No.27014/2021

being set in and many more complications are

likely to arise. To avoid such contingencies, Order

41 Rule 5 C.P.C. requires stay of execution in such

executable decrees. I, therefore, find force in the

contention of Sri Chandrasekar that the decree for

perpetual injunction in a case of this type is not

executable and question of stay of such decrees

does not arise.”

In view of aforesaid, counsel appearing for petitioner made a

prayer for setting aside of impugned order.

4.

Counsel appearing for respondent supported the order passed by

the appellate Court and submitted that appellate Court has jurisdiction

under Order 41, Rule 5 of C.P.C. to grant stay. No error has been

committed by appellate Court in passing the impugned order and made

a prayer for dismissal of petition.

5.

Heard the counsel for appellant as well as respondent.

6.

Since petitioner has challenged order passed by appellate Court

granting stay over decree of permanent injunction. In view of same,

petitioner ought to have filed a petition under Article 227 of

Constitution of India and not a petition under Article 226 of the

Constitution of India. Considering the same, writ petition filed by

petitioner is treated as a petition under Article 227 of the Constitution

of India. Illegality pointed out in the order calls for interference of this

4 W.P. No.27014/2021

Court exercising its jurisdiction under Article 227 of the Constitution

of India.

7.

Order 41, Rule 5 of C.P.C. is reproduced as under:-

“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.

[Explanation-An order by the Appellate Court

for the stay of execution of the decree shall be

effective from the date of the communication

of such order to the Court of first instance,