BIRENDRA PRASAD Vs. NAGENDRA NARAYAN SINGH DEO

JUDGEMENT

(1.) THIS Revision Petition has been filed against the long order dated 12.12.1996 passed by the 3rd Addl. District and Sessions Judge, Chaibasa in Title Appeal No. 26 of 1996 refusing to act on the petition filed under Order XLL Rule 5, C.P.C. r/w Section 151 of the C.P.C. for stay of the order of injunction passed and decreed in Title Suit No. 3 of 1988 which has been challenged in Title Appeal No. 26 of 1996.

(2.) REGARDING the maintainability of the petition under Order XLI, Rule 5 C.P.C. Mr. N.K, Prasad, appearing on behalf of the petitioner has fairly submitted that the Order XLI, Rule 5, CP.C. would not be applicable in the present circumstances of the case.

(3.) ACCORDING to Mr. N.K. Prasad, when Order XLI, Rule 5, CP.C is not applicable as there is no executable decree on the face of it then Section 151, CP.C. must apply as the decree which has been granted, even though the same is in dilute stage because of the pendency of the appeal, but the same has got mischievous civil consequence, to the effect that the petitioner appellants may be held liable for violation of injunction as contemplated under Order XXXIX of the CP.C and to avoid such mischief and Civil consequence, such stay order is necessary, when the appeal is nothing but a continuation of the suit and the impugned decree has been challenged in the appeal itself.