THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 218 OF 2010 Date of order: 19.3.2010 Between: M. Jayachandra @ Jayachandra Chetty and another …Appellant and P. Sakuntahalamma ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 218 OF 2010 ORDER: 1. This revision is preferred by the petitioners/appellants against the order dated 8.12.2009 in I.A.No. 127 of 2009 in A.S.No. 6 of 2009 on the file of the Senior Civil Judge, Puttur. 2. It appears that there are two suits, one filed by the petitioners herein being OS No. 220 of 2006 which is pending in the Court of Principal Junior Civil Judge, Puttur and another suit OS No. 200 of 2006 was filed by the respondent herein which was decreed on 20.11.2008, against which the petitioners filed an appeal vide AS No. 6 of 2009 before the lower appellate court. They had also filed an application-IA No. 127 of 2009 under Order 41, Rule 5 of the Code of Civil Procedure (for short “the Code”) seeking stay of the trial Court’s judgment and decree of perpetual injunction, but the said application was dismissed under the impugned order by the lower appellate court only on the ground that the petitioners had suppressed filing of earlier application-IA No. 117 of 2009 under Order 39, Rules 1 and 2 of the Code and its dismissal on 26.10.2009. The said order of the lower appellate court dated 8.12.2009 is questioned in this revision. 3. On 26.2.2010 this Court ordered notice before admission to be served on the respondent by registered post with acknowledgement due and the learned counsel for the petitioners was permitted to take out notice and file proof of service. The learned counsel for the petitioners has filed proof of service on 12.3.2010 together with an acknowledgement of service on the respondent. Though the respondent was served, nobody appeared for him either on 12.3.2010 or on this day. I have heard learned counsel for the petitioners. 4. The objection of the lower appellate court under the impugned order appears to be justified as the petitioner had filed earlier an application-IA No. 117 of 2009 under order 39, Rule 1 and 2 of the Code seeking injunction and only after dismissal of the said application by the lower appellate court on 26.10.2009, the present application-IA No. 127 of 2009 has been filed under Order 41, Rule 5 of the code on 28.10.2009 seeking stay of execution of the decree. The learned counsel for the petitioners states that pending the suit there was an order of status quo in operation, but after the suit was decreed, it was necessary for the petitioners to have obtained interim stay of the decree, pending appeal as decree of perpetual injunction operates against the petitioners. He submits that instead of filing an application under Order 41, Rule 5 of the code seeking stay of the execution of the trial Court’s decree, the petitioners had mistakenly filed an application under Order 39, Rules 1 and 2 of the Code which was dismissed on 26.10.2009 and after realizing the mistake, they have filed a proper application under Order 41, Rule 5 of the Code. The learned counsel for the petitioners contends that although the affidavit filed in support of the present petition does not disclose about filing and dismissal of IA No. 117 of 2009, but the same cannot be treated as a material suppression and the impugned order of the lower appellate court rejecting the present application, without considering it on merits, is unjustified. 5. It is well settled that the appeal is in continuation of the suit and it is evident from the record that pending the suit, there was an order of status quo passed by the trial Court in IA No. 953 of 2006 which was in operation. The right of appeal under Section 96 of the Code which is availed by the petitioners therefore would be effective only when the lower appellate court exercises its powers under Order 41, Rule 5 of the Code. In the present case the lower appellate Court has declined to exercise the said power on the ground that the petitioners had suppressed the filing of earlier IA No. 117 of 2009. The lower appellate court has however not taken into consideration the fact that the earlier application was not for seeking stay of execution of decree, but it was an independent application for injunction, whereas there was already an injunction decree operating against the petitioners. As such the said application-IA No. 117 of 2009 could not have been maintained and was rightly dismissed by the lower appellate court. However, the present application being one for seeking stay of execution of decree, it cannot be thrown out without consideration on merits merely on the ground of suppression. Though I am inclined to accept the contention of the learned counsel for the petitioners, in all fairness the petitioners should have disclosed the filing of the said application, but even if on the ground of mistake or otherwise if the same is not disclosed, it would not amount to such a material irregularity or suppression so as to warrant non-consideration of the present application which was filed for a totally different purpose. In the circumstances, the order impugned is liable to be set aside. 6. The revision is allowed and the impugned order is set aside. There shall be interim stay of execution of the decree in OS No. 200 of 2006 dated 20.11.2008 on the file of the Principal Junior Civil Judge, Puttur for a period of four weeks from today. The lower appellate court shall be at liberty to pass appropriate further orders on the stay petition-I.A.No. 127 of 2009 in A.S.No. 6 of 2009, in accordance with law, after giving notice and opportunity of filing counter to the respondent and after hearing both sides. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 19.3.2010 NB: CC of order be furnished in one week. /BO/ KR