ORDER
S.K. Keshote, J.
1. By this civil application, prayer has been made by the original defendants No. 1, 2 and 3, the applicants herein, for stay of the judgment and decree dated 31-3-1995 of Civil Judge (S.D.), Navsari in special Civil Suit No. 58/87. This Civil Suit has been filed by the plaintiff-respondent No. 1, Ketan Babubhai Shah, against the defendants-appellants for recovery of Rs. 56,771-51 ps. Learned trial Court under the impugned judgment and decree, decreed the suit of the plaintiff-respondent No. 1 for Rs. 39,544/- against the defendants-appellants and other defendants. All the defendants, which includes the appellants herein, were held jointly and severally liable to pay the decretal amount to the plaintiff-respondent No. 1.
2. Learned counsel for the applicants vehemently contended that the suit filed by the plaintiff-respondent No. 1 was barred by limitation. The plaintiff-respondent No. 1 has not given out the date on which the loan has been given to the defendants-appellants. Even it is not disclosed what was the amount given as loan to the defendants-appellants. Carrying this contention further, learned counsel for the applicants contended that the learned trial Court has taken the suit to be within limitation by resorting to provisions of Section 18 of the Limitation Act, which is wholly illegal, erroneous as the plaintiff-respondent No. 1 has failed to give out the date on which the loan has been given and the amount of loan given, there is no question of any acknowledgment thereof.
3. I have given my thoughtful consideration to the submissions made by the learned counsel for the applicants.
4. The appeal is admitted. As the appeal has been admitted though the learned counsel for the applicants has raised the contentions on merits, I do not consider it to be appropriate to give any final decision on these contentions otherwise it will affect the merits of the appeal itself. While deciding the application filed for grant of interim relief, the Courts should refrain from deciding the issues involved in the appeal finally. Be that as it may. The admission of the appeal, it is given out that this Court has found that the matter deserves consideration but it cannot be taken as if that the decision of the trial Court is reversed or it has to be reversed. Ultimately on final hearing of the appeal, the Court may allow the appeal or may also dismiss the appeal where it is held that the judgment does not suffer from any illegality or any infirmity. So by admission it can be taken only that the Court prima facie found that the case needs consideration. Nothing finally can be said regarding the legality, propriety and correctness of the impugned judgment and decree of the learned trial Court. It is not in dispute that the judgment and decree is passed in a money suit. It is a money decree which has been passed in favour of the plaintiff-respondent No. 1 and normally this Court should refrain to grant the stay of its execution even if it is taken that by admission of the appeal, the applicants-appellants have made out a prima-facie case. Merely on this ground, the stay of the operation of the decree passed in favour of the plaintiff-respondent No. 1 cannot be ordered.
5. On this civil application, I do not find under which provision of the C.P.C. the same has been filed. In this Court, invariably the litigants are not mentioning the provision of the relevant Act under which the application has been filed. It would have been better that the application should contain the provision under which the same has been filed. Be that as it may. Order 41, Rule 5 of C.P.C., 1908 makes aprovision for stay by appellate Court. Sub-rule 1 of Rule 5 of Order 41 of C.P.C. provides that 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. This Rule further lays down that the execution of decree shall not be stayed by reason only of an appeal having been preferred from a decree. However, the appellate Court may for sufficient cause order stay or execution of such decree.
6. Sub-rule 3 of Rule 5 of Order 41, C.P.C. is relevant provision for the consideration to decide this civil application and I consider it to be appropriate to reproduce it, which reads as under:
(3) No order for stay of execution shall be made under Sub-rule (1) or Sub-rule (2) unless the Court making it is satisfied-
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
7. The judgment and decree of the learned trial Court is of 31 -3-1995. This civil application for stay of the execution of that judgment and decree is filed in this Court on 23-/-1997 i.e. after more than two years and three months. I do not find on the record of this civil application or the first appeal that the applicants-appellants have given any security for the due performance of decree. No order for stay of execution can be made by this Court unless it is satisfied that the substantial loss may result to the appellants herein unless the order is made. The second requirement is that the application for stay of executio’n of the decree has to be made without any reasonable delay. So far as the second requirement is concerned, it is suffice to say that along with the appeal which has been filed by the applicants-defendants in this Court on 5-9-1995, the applicants have not filed this civil application. No explanation has been given whatsoever for this delay of more than two years in filing of this civil application in this Court. The possibility of execution of the decree by this time cannot be overruled. It is not the case of the applicants that the decree has not been executed so far. Be that as it may. From the note of the counsel for the applicants dated 18-2-1998 it appears that the execution of the decree has been taken out by the respondents after filing of this civil application.
8. The important question which calls for consideration of this Court is whether the applicants will suffer any substantial loss in case the interim relief as prayed in this civil application is not granted by this Court. I have gone through the contents of this civil application and I find therefrom that number of grounds have been taken therein to challenge the judgment and decree on merits. Even in this application there is no whisper what to say a clear, categorical and specific statement as to how in case the execution of the decree impugned in this appeal is not stayed, the applicants will suffer any substantial loss. The very basic and important ingredient as provided in Sub-rule 3 of Rule 5 of Order 41, C.P.C. is missing in this civil application. In the absence of any pleadings and further relevant material on the basts of which this Court could have satisfied that decline of prayer for grant of stay in favour of the applicants will result in substantial loss to them, this Court has no power to grant any interim relief as prayed in this civil application. Be that as it may. During the course of arguments also, the learned counsel for the applicants has not advanced on this aspect. It is a money decree and in case execution thereof is not stayed, the applicants-appellants will not suffer any loss as if ultimately decree is reversed, the amount can be ordered to be restored to them with reasonable rate of interest as decided by this Court. There is very specific provision under Section 144 of the C.P.C. for restitution of whatever benefits which have been taken by the other side in execution of the decree. In the case of money decree it is difficult to hold that the appellants will suffer any substantial loss in case the execution thereof is not stayed. If the decree has been passed in a contested suit in favour of the plaintiff-respondent No. 1 the Courts normally should not deprive the benefits or the fruits of decree to the decree holder merely because the defendants have chosen to file the appeal before this Court. The Court has to draw a balance in between these two parties and where the money decree has been made in favour of the decree holders keeping in view of the provisions of Order41, Rule 5, C.P.C. normal rule should have been to decline the relief unless the appellants made out a case of substantial loss likely to be caused to it on decline of the same and the Court is satisfied. In this present case, otherwise also, I do not find anything on record on the basis of which a satisfaction can be recorded that declining relief as prayed for in this civil application will result in substantial loss to the applicants.
9. During the course of arguments, learned counsel for the applicants raised another contention that the other side despite of service of notice of this civil application has not put appearance and as such the prayer made in this civil application may be granted. I fail to see any justification in this contention. In case this contention is accepted then first appeals, second appeals or appeal against the order etc. have to be accepted on non-appearance of the other side but it is not the law. The matter has to be considered on merits and in case where the Court is satisfied that the case has been made out for grant of interim relief only then interim relief can be granted. Merely because of the non-appearance of the other side or non-contesting of the application by the other side will not be taken to be a case where this Court has to act mechanically and whatever prayer made has to be granted irrespective of the fact whether the applicants has made out a case of causing substantial loss in case where the interim relief is declined.
10. Taking into consideration the totality of the facts of this case, this civil application has no merits and the same is dismissed. Rule discharged.