In the High Court of Punjab and Haryana, at Chandigarh Date of Decision: 10.03.2025 Rajmata Sahiba Educational Society, Buria and Another ... Petitioner(s)

Versus Sushila Devi (Since Deceased) through her Legal Representative ... Respondent(s)

CORAM: Hon'ble Mr. Justice Anil Kshetarpal.

Present: Mr. Ravi Malik, Advocate for the petitioner(s). Anil Kshetarpal, J.

1. The petitioner herein is a tenant who has been ordered to be evicted by the Rent Controller. Its appeal is pending before the Appellate Authority for the last three years. Initially, the petitioner filed an application for stay which was dismissed as not pressed on 18.04.2022. Thereafter, the petitioner did not file any fresh application for stay all this while. After a period of three years, the petitioner filed a fresh application which was dismissed by the Appellate Authority with the following observations:-

“5. The record reflects that the applicant had previously filed a similar application alongwith the appeal. However, the application was not pressed by the him and it was dismissed as not pressed vide order dated 18.04.2022 by the Predecessor Presiding Officer of this Court. Thereafter, the appeal remained DEEPAK KUMAR BHARDWAJ pending. Now fresh application has been filed by the applicant-

appellant to seek the same relief. Though there is no res- judicata in filing the similar application on fresh cause of action but at the same time, it is apt to note that the present application has been filed after about three years of filing the appeal. The learned counsel for respondent is ready to argue appeal on merit. On asking, the learned counsel for appellant- applicant if he is ready to argue on main appeal on merits, has stated that firstly, he requires his application for stay only to be decided. It appears that the applicant-appellant only wants to delay the decision of appeal. It has also been pointed out that the applicant-appellant is also in arrears of rent and has not paid rent since long. The applicant has not been able to point out anything on merit warranting the stay of the impugned judgment passed by the learned Rent Controller except the fact that the Executing Court has issued warrant of possession. Unless, the applicant-appellant is unable to show prima facie case in his favour coupled with irreparable loss and balance of convenience, this Court do not find any reason to stay the impugned judgment.”

2. Subsequently, the warrants of possession were issued by the Executing Court. The petitioner filed an objection petition and prayed to the Executing Court to stop execution of the warrants of possession which has been rejected by the Court after analyzing the order passed by the Appellate Authority on 11.02.2025.

3. The learned counsel representing the petitioner contends that since the appeal of the petitioner is pending, hence, the Executing Court should have stayed the execution proceedings.

4. This Court has considered the submissions of the learned counsel representing the petitioner.

5. Order XLI Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) reads 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, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of