D.K. Seth, J. - (1.) The defendant-petitioner had preferred a second appeal against the decree for realisation of certain sums passed in Original Suit No. 150 of 1979, which was affirmed in first appeal. In the second appeal his application for stay of execution is pending. In the meantime the decree holder has put the decree for execution in Execution Case No. 6 of 1996. In the said execution proceeding the petitioner had applied for stay of the execution on the ground of pendency of appeal. The said application had been dismissed by order dated 19.12.1997. Against the said order he had preferred a revision being Revision No. Nit of 1998, which was also dismissed by order dated 22.4.1998. It is also submitted that he has filed another stay application which was also dismissed on 5th May, 1998. Sri K.K. Tripathi, learned counsel for the petitioner assails these orders in the present writ petition.
(2.) After having heard Sri K.K. Tripathi, learned counsel for the petitioner I find that the contention of Sri Tripathi cannot be sustained. Order XLI, Rule 5 of the Code prescribes for obtaining stay, when the appeal is preferred. Rule 5 of the Code specifically provides that mere filing of appeal would not operate as stay. Therefore, specific order of stay is to be obtained from the appeal court. It is the discretion of the Court passing decree to grant stay. But after the decree is put into execution, the Court that had passed decree, cannot grant stay.
(3.) The jurisdiction of the Court , that had passed the decree, to grant stay is limited to the extent as circumscribed under Order XLI. Rule 5, sub-rule (2) of the Code of Civil Procedure. It can exercise such jurisdiction only when applied to it before the expiry of the period of limitation for preferring an appeal. Once the period of limitation for preferring appeal is expired the Court, that had passed the decree, ceases to have jurisdiction to grant stay. This is explicit from sub-rule (2) which runs as follows : "Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.";