SANJEEB KUMAR Vs. BALGOVIND PRASAD

JUDGEMENT

(1.) The petitioners are aggrieved of order dated 03.01.2018 passed in Title Appeal No. 24 of 2016 by which their application under Order XLI Rule 5 CPC has been declined. They are judgment-debtors.

(2.) Title Suit No. 42 of 2012 was instituted for a decree for specific performance of agreement dated 26.06.1999. The suit was decreed by judgment dated 24.09.2016 challenging which the petitioners have filed Title Appeal No. 24 of 2016. In the meantime the decree-holder has initiated execution case on 17.02.2017. The petitioners filed an application on 18.03.2017 for stay of further proceeding in Execution Case No. 02 of 2017 which has been dismissed by the appellate court.

(3.) Order XLI Rule 5 CPC provides that an appeal shall not operate as stay of proceeding under a decree or order appealed from, however, the appellate court may for sufficient cause order stay of execution of such decree. The trial judge has recorded a finding that the property comprised under the agreement to sale dated 26.06.1999 has already been delivered to the plaintiff. In "Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported in, 2005 1 SCC 705" the Supreme Court has observed that the question which the court should ask itself is why status-quo as on the date of decree be not granted and not that why the stay should be granted. In view of the fact that delivery of possession of the property in question was already delivered to the decree-holder and the appellants have received full consideration amount, no irreparable injury would cause to them if proceeding in Execution Case No. 02 of 2017 is not stayed.