ORDER
1. This revision petition under Section 115 of the CPC arises from the order of the learned Additional Civil Judge (Junior Division), Doddabal-lapur in Ex. No. 29 of 1998 allowing the execution petition.
2. The suit for specific performance of contract namely suit No. 12 of 1992 was decreed by the Trial Court judgment and decree dated 26-11-1997. The decree-holder filed an application for execution of decree on 27-2-1998. The judgment-debtor took objection that the decree-holder had not deposited the sum of Rs. 25,000/- within the period and the application moved by the decree-holder for permission to deposit be rejected. It was alleged that the decree-holder had sworn a false affidavit that the judgment-debtor had failed to receive the said amount and sought permission to deposit the said amount and that amount having been deposited three months beyond the period. So, decree-holder had not complied with the Court’s direction as such the application be rejected. The execution Court considered the affidavit filed by the decree-holder and in the absence of any counter affidavit being filed by the judgment-debtor challenging the averments made in the affidavit, accepted the averments made by the decree-holder in the affidavit. The Court opined the affidavit of the decree-holder clearly revealed that the decree-holder was ready and willing to deposit Rs. 25,000/- on the date of filing of the execution application itself, but as the case was adjourned to 13-4-1998 and the decree-holder deposited the amount on 5-3-1998. The Court below opined that the facts in the affidavit clearly shows that there was no fault on the part of the decree-holder in performing his part of contract. The Court below further observed that even if an appeal (R.A. No. 13 of 1998) is filed from the Trial Court’s decree and is pending in the Court of Additional Civil Judge, Bangalore Rural District, but as the judgment-debtor has not filed the copy of any interim order passed in the appeal (R.A. No. 13 of 1998) to substantiate that the judgment and decree has been stayed in the said R.A. No. 13 of 1998 preferred by the judgment-debtor. Therefore, it further opined as the decree-holder had deposited Rs. 25,000/-, he is entitled to get registered the suit schedule property in his name by execution of decree and allowed the execution petition. The judgment-debtor has come up in revision.
3. I have heard the learned Counsel for the revision petitioner.
4. As regards the contention that appeal had been filed, therefore Court below should have stayed the proceedings pending decision of the appeal, I am unable to accept this contention. Filing of appeal from a decree by itself does not operate as a stay of decree as is very much clear from Order 41, Rule 5 of the Civil Procedure Code wherein sub-ruled) of Rule 5 clearly states and provides–
“Rule 6(1). Stay by Appellate Court.–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”.
The very first sentence of Rule 5(1) very clearly shows that mere filing of appeal should not be taken to operate as a stay of decree challenged in the appeal. The Appellate Court may grant stay order for sufficient cause, but mere filing of an appeal shall not operate as stay.
5. Learned Counsel for the revision petitioner contended that in view of provisions of Order 21, Rule 26, the Court was required to stay the execution. Rule 26 provides–
“Rule 26. When Court may stay execution.–(1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto”.
6. Rule 26(1) only relates to granting of limited stay of execution by execution Court for specific purpose of enabling the judgment-debtor to apply for stay order from the Appellate Court or from the Trial Court which passed the decree or for suitable orders. It has not been the case of the revision applicant that he wanted time to obtain stay order from any Court. That being the position, Rule 26(1) is of no assistance to the revision petitioner nor can it be said that the Court below in any manner acted illegally in ordering execution. Revision is dismissed.