Order XLI Rule 5 CPC allows only stay of execution of decree and not stay of operation of judgment: Kerala High Court

Order XLI Rule 5 of the Code of Civil Procedure provides for only stay of the proceedings under a decree or stay of execution of the decree and does not empower the appellate court to stay the operation of the judgment, the Kerala High Court recently held (Raveendran v Lalitha)..Single judge Justice VG Arun passed the order after examining the provisions under Order XLI Rule 5 which deals with the powers of the appellate court to stay proceedings and execution."Going by the plain meaning of Order XLI Rule 5, it provides for only stay of the proceedings under a decree or stay of execution of the decree. The provision does not empower the appellate court to stay the operation of the judgment," the Court held. The Court in its judgment also clarified the distinction between stay of execution of decree and stay of operation of judgment. "Stay of operation of the judgment is not the same as staying the operation of the proceedings under a decree or staying the execution of a decree. An order staying the operation of the judgment will amount to staying the findings in the judgment, which cannot be done at the stage of admission," the judgment said.In the instant case, the High Court noted that even though the appellate court had stated its reasons for issuing the order under challenge, it still had no power to stay the operation of the judgement."Even on being convinced of the reasons for granting stay, the appellate court could have stayed only the proceedings under the decree or execution of the decree and not, the operation of the judgment," the High Court emphasised..The petitioner had filed a suit at the Munsiff court, Kollam seeking a perpetual injunction. The Munsiff court had found in favour of the petitioners and issued an appropriate decree but the respondents filed an interlocutory application to stay the same.The application was filed under the provisions of Order 41 Rule 5 of CPC seeking to stay the operation of the decree of the lower court which was allowed by the Additional District Court, Kollam..The petition before the High Court, filed through advocate H Vishnudas assailed the order of the District Court on the basis of the limited provision of Order XLI Rule 5 of CPC.It was contended that Order XLI Rule 5 of CPC - empowers the appellate court to only stay the proceedings and execution of a decree and the court is not clothed with the power to stay the operation of the judgment and decree;does not provide for mere filing of an appeal shall to operate as a stay of proceedings under a decree, except so far as the appellate court may order;does not provide for stay on execution of decree by reason of appeal being preferred and can only be for sufficient cause.Vishnudas argued that the intention of legislature in framing the caption to said order "stay of proceedings and stay of execution" shows that the appellate court can do nothing other than staying the proceedings under the decree or staying execution of the decree. Moreover, stay of operation of a judgment will have the effect of relegating the parties to the pre-suit stage, he added.To buttress these arguments, reliance was placed on the decisions of the Kerala High Court in Sulochana Peter v. Chellamma Swarnamma, and Harish Premshankar Bhatt and Anr.v Kailasbhai K. Sabaria. .It was also pointed out that even though these arguments were brought to the notice of the appellate court, the judge refused to review the order..The Court had earlier issued an interim order in favour of the petitioner in the instant case directing the appellate court to take up the matter and pass orders expeditiously.However, the appellate court considered the same and dismissed the review application, relying on Order 41 Rule 33 of CPC. Justice Arun stated that the appellate court is not expected to exercise the power under Order 41 Rule 33 CPC, while admitting an appeal. Rather, such power is meant to be exercised only when considering the appeal on merits. .The Court found merit in the arguments of the petitioner and set aside the orders of the appellate court which had stayed the operation and execution of the trial court order and then refused to review the same. It directed the appellate court to, therefore, consider the application for stay afresh and and to pass orders after affording an opportunity of hearing to the parties.[Read Order]