ORDER
N.G. Das, J.
1. This application under Section 115 read with Section 151 of C.P.C. is directed against the order of learned Civil Judge, Senior Division No. 1, Agartala dated 13-1-1997.
2. I have heard Mr. B. Das, the learned senior counsel appearing on behalf of the petitioner and Mr. S. Bhattacharjee, the learned counsel appearing on behalf of the respondents.
3. Shorn of details, the facts relevant for disposal of this application are that the respondents obtained a decree against the present petitioner by virtue of the judgment passed by the first appellate Court setting aside the judgment and decree that was passed by the trial Court, namely, Civil Judge, Senior Division No. 1. Aggrieved, the present petitioner preferred a Second Appeal being Second Appeal No. 20/93. But that appeal was also dismissed by this High Court on 27-8-1996. The petitioner then submitted a review petition being Civil Review Petition No, 22 of 1996. But that was also dismissed on 27-11-1996.
4. According to the petition, the petitioner submitted Special Leave petition before the Supreme Court along with an application for staying the execution of the decree as in the meantime the respondents filed the Execution Case being No. Ex(T)5 of 1993. The Second Appeal being disposed of against the petitioner, the petitioner filed an application before the trial Court for staying the operation of the execution case. But the trial Judge by the impugned order rejected that prayer. The petitioner has, therefore, submitted this application to stay the execution proceedings.
5. It has, therefore, to be decided as whether in view of the provisions laid down under Section 115 and Section 151 of C.P.C. this Court has any power to stay the execution proceedings as the Second Appeal and the Review Petition were already disposed of by this court and admittedly the petitioner has preferred S.L.P. before the Supreme Court along with an application for stay.
6. Mr. B. Das, the learned senior counsel appearing on behalf of the petitioner has submitted that in view of the fact that petitioner has already preferred an S.L.P. before the Supreme Court along with an application for stay this Court in exercise of its powers under Section 151 of C.P.C. can stay execution proceedings fordoing justice.
7. But Mr. S. Bhattacherjee, the learned counsel appearing on behalf of the respondents has vehemently opposed to stay the execution proceedings as according to him there is no scope for this court to stay the execution proceedings. Moreover, it is submitted by Mr. Bhattacharjee that the execution court already granted 41/2 months time to the petitioner for submitting the stay order. But the petitioner did not bring the stay order. However, it may be examined whether there is any scope for staying the execution proceeding by this Court.
8. Rule 5 of Order41 of C.P.C. applies to stay by appellate court of proceedings under a decree or order appealed from. Under this provision the appellate Court has the powers to stay execution of a decree and this power can be exercised only when an appeal has already been filed. When appeal has been filed the jurisdiction rests with the appellate Court. The question, therefore, needs consideration as to whether after disposal of the appeal the appellate Court has any jurisdiction to stay the execution proceedings, particularly, when it is an admitted fact that an S.L.P. has been filed before the Supreme Court against the judgment of this Court.
9. Now the Supreme Court is the appellate Court and executing court is the trial Court, namely, the Court of Civil Judge, Senior Division No. 1. A perusal of the provisions laid down under Order 41, Rule 5 of C.P.C. will make it abundantly clear that the intention of the Legislature is that it is either appellate Court or the executing Court which can stay the execution proceedings and no other Court, in the instant case, after disposal of the Second Appeal the petitioner filed an S.L.P. before the Supreme Court. Therefore it is now the Supreme Court which is the appellate Court. Therefore, in my opinion, this Court is now functus officio and it cannot exercise the powers under Order 41, Rule 5 or under Section 151 of C.P.C. to stay execution of the decree.
10. Mr. Das has, however, referred to a decision of the Rajasthan High Court reported in AIR 1954 Raj 301. But on going through the judgment I find that this decision does not actually help the petitioner firstly, because the judgment was passed in respect of the disposal of a writ petition. It is true that the Rajasthan High Court made an observation that the High Court has in proper cases has the power to pass an order of stay under Section 151 of C.P.C. But even though it has been stated like that the Court made the following observation :–
“In a case like the present where the writ petition has been dismissed, and particular law has been upheld, it is not open to the High Court under Section 151 to pass an order, simply because an application for leave to appeal to the Supreme Court has been filed, in the guise of giving interim relief when such order would be directly against the final order passed by the High Court. It is only the Supreme Court which can now grant any relief to the applicant, and His only that Court which may, if it so desires, grant interim relief in aid of the final relief. So far as the High Court is concerned, the final relief having been refused, it is not possible for the High Court to grant interim relief under Section 151 of the Code of Civil Procedure.”
11. The next decision referred to by Mr. Das is a decision of the Court of Judicial Commissioner, Manipur, AIR 1957 Manipur 35. On going through the judgment I find that the petitioner in that case also filed an application under Article 226 of the Constitution of India and that writ petition being dismissed he filed an application praying for stay on the ground that he would prefer S.L.P. But in the instant case it is an admitted fact that an S.L.P. has already been filed and along with that S.L.P. an application for stay has also been filed.
12. The third decision referred to by Mr. Das is the judgment of the Supreme Court reported in (1982) 2 SCC 54. But this judgment is also not applicable to the present case as in that case Special Leave was granted and thereafter execution of the decree was stayed.
13. In view of the facts and circumstances discussed above, I am of the considered opinion that it is not open to the High Court to exercise inherent power to stay the execution of the decree which is beyond its powers under Order 41, Rule 5 of C.P.C.
14. The petition is accordingly dismissed with Costs.