JUDGMENT
P.K. Balasubramanyan, C.J.
1. The legal representative of the defendant in Title Suit No. 302 of 1990 on the file of the Civil Judge (Senior Division), Puri is the petitioner in this revision. The suit before the trial court was filed by the plaintiff-respondent, for declaration of right, title and possession over the suit property and for a permanent injunction restraining the defendant, the predecessor in interest of the petitioner herein and Ors. impleaded, from interfering with her possession. The suit was decreed by the trial court. The legal representatives of the defendant filed an appeal before the District Court as Title Appeal No. 53 of 2000. That appeal was apparently admitted under Order 41, Rule 11 of the Code of Civil procedure. In that appeal, the appellants, the legal representatives of the defendant, made an application for a stay of operation of the decree of the trial court, pending disposal of the appeal. They invoked under Order 41, Rule 5 of the Code of Civil Procedure. The appellate court apparently passed an ad interim order. On the respondent in the appeal appearing and objecting to the order contending that a stay of declaratory should not be granted in exercise of jurisdiction under Order 41, Rule 5 of the Code of Procedure, it upheld that objection and without going into the merits, vacated the interim order already passed. The Court did not accede to the argument of the defendants that an order of stay could be passed in exercise of the inherent power of the Court under Section 151 of the Code of Civil Procedure even if it is assumed that there is no provision enabling the grant of such a relief.
2. In this revision, notice was taken out to the respondent by special messenger. Although notice was served on the respondent, he refused to receive the same. In the circumstances, I consider it sufficient service of notice on the respondent.
3. Even if the decree of the trial court is a declaratory decree, there is no prohibition in the lower appellate court entertaining an appeal from the decree, from granting a stay of operation of the decree of the trial court. The power to stay the operation of a decree of the trial court is available under Order 41, Rule 5 of the Code of Civil Procedure and in any event, there is such a power in an appellate court exercising jurisdiction under Section 96 of the Code supplemented by the powers available under Section 151 of the Code of Civil Procedure, if it is taken to be necessary. If there is no specific power conferred by any provision of the Code, it is clear that the Court can in a proper case, exercise its inherent power. This is clear from the decision of the Supreme Court in Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralat (AIR 1962, SC 527). The Court below in my view was not correct in holding that it has no power or jurisdiction to grant a stay at all. Of course, the question whether an interim order of stay should be granted, would depend on the facts and circumstances of a given case while considering prima facie that question. Since the view of the appellate court that it has no jurisdiction or power is found to be erroneous, I vacate that order and direct the District Court to take up the interlocutory application filed by the appellants in Title Appeal No. 53 of 2000 for consideration of the same on merits. That court will take up the application filed by the appellants before it and after hearing the appellants and the contesting respondent, pass a final order thereon, one way or the other. For the purpose of convenience; I direct the appellate Court to number the application for interim relief filed by the appellants in Title Appeal No. 53 of 2000 as an interlocutory application (I.A.) in Title Appeal No. 53 of 2000 and dispose of the same in accordance with law in the light of the observations made above and on merits.
4. The Civil Revision petition is allowed as above. Urgent certified copy of the order be granted on proper application.