Smt. Ranji Vandana Rakesia vs Jamuna Bai
2023 Latest Caselaw 5635 MP

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                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                      MP No. 1860 of 2023
                                         (SMT. RANJI VANDANA RAKESIA Vs JAMUNA BAI AND OTHERS)

                          Dated : 06-04-2023
                                Shri Dayaram Vishwakarma - Advocate for the petitioner.

                                This Miscellaneous Petition under Article 227 of the Constitution of India
                          has been filed against the order dated 21.02.2023 passed by Civil Judge Junior
                          Division, District Chhindwara in Execution Case No.8-A/2018 by which the
                          Executing Court has stayed the further proceedings of execution proceeding on

                          the ground of pendency of second appeal.
                               The facts necessary in short are that a decree was passed in favour of the
                          petitioner and ultimately a second appeal is pending before this Court, which
                          has been registered as S.A.No.938/2022. The said second appeal has not been
                          admitted so far. In the light of the judgment passed by the Supreme Court in the
                          case of Raghavendra Swamy Mutt v. Uttaradi Mutt, reported in (2016) 11
                          SCC 235,      no interim order can be granted under second appeal unless it is
                          duly admitted upon formulation of substantial questions of law.
                               Furthermore, as per provision of Order 41 Rule 5 of CPC, 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. Therefore, the Executing Court was wrong in staying execution of the
                          decree on the ground that second appeal is pending specifically when the same
                          has not been admitted for far.
                               It is well established principle of law that what cannot be done directly, can
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 06-Apr-23
6:28:30 PM
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                          also not be done indirectly. Once, the High Court cannot pass an interim order
                          unless and until the second appeal is admitted, then the Executing Court cannot
                          travel beyond its jurisdiction by staying execution proceedings on the ground
                          that since the appeal is pending, therefore, the execution proceedings should be
                          kept in suspended animation.
                                   Furthermore, the Executing Court has lost sight of the fact that as per the
                          provisions of Order 41 Rule 5 of CPC, even execution of a decree cannot be
                          stayed for the reason that an appeal is pending against the decree.
                                   Issue notice to the respondents on payment of process fee by Registered

AD mode, payable within seven working days.

In the meanwhile, the effect and operation of order dated 21.02.2023 shall remain stayed.

The Executing Court is directed to proceed further. List this case on 01.05.2023 for final hearing at motion stage.

(G.S. AHLUWALIA) JUDGE

vinay*

Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 06-Apr-23 6:28:30 PM