RAN VIJAI SINGH,J. - (1.) HEARD Sri B.N. Agrawal assisted by Sri Sanjay Agrawal, learned counsel for the petitioners and Sri Choudhary Subhash Kumar, learned Standing Counsel appearing for the contesting respondents.
(2.) LEARNED counsel for both the parties are agreed that this writ petition may be decided finally without any further exchange of affidavits at this stage. Therefore, the writ petition is taken up for final disposal. Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 31.5.2013 passed by the In -charge, District and Sessions Judge, Jalaun, by which the petitioners' application for interim protection in appeal no. 43/2013 (Pawan Singh and Another Vs. Rameshwar Prasad) has been rejected for non -compliance of sub -rules (3) and (5) of Rule 5 of Order 41 of the Code of Civil Procedure, 1908 (in short, 'CPC'). It appears, a suit was filed against the petitioner by the respondents for demolition , delivery of possession and payment of damages. The suit was decreed on 10.5.2013 with the direction to the petitioners to hand over the possession to the plaintiff and also pay Rs. 10 per day towards damages from the date of institution of suit till the date of delivery of the possession. Learned In - charge, District and Sessions Judge has although admitted the appeal, but rejected the petitioners' application praying stay of the execution of the decree on the ground that sub -rules (3) and (5) of Rule 5 of Order 41 of the CPC have not been followed. For appreciating the controversy, it would be necessary to see the language used in sub -rules (3) and (5) of Rule 5 of Order 41 of the CPC, which are reproduced hereinunder: "(3). No order of 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. (5) Notwithstanding anything contained in the foregoing sub - rules, where the appellant fails to make the deposit or furnish the security specified in sub -rule (3) of rule 1, the Court shall not make an order staying the execution of the decree."
(3.) IT appears, in the year 1994, an amendment was made in sub -rule (5) of Rule 5 of Order 41 of the CPC which is reproduced hereinunder: "(5). Notwithstanding anything contained in the foregoing sub -rules where the appeal is against a decree for payment of money, the Appellate Court shall not make an order staying the execution of the decree, unless the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Appellate Court may think fit." ;