(1) WP. 3097.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3097 OF 2010 Kaushalyabai w/o Trimbak Yede Age: 68 years, Occu.: Agri., R/o Anjanwati at present R/o Waghira Tq. Patoda District : Beed .. PETITIONER VERSUS 1. Dashrath S/o Ashruba Bawane Age : Major, Occu.: Agri., R/o Waghira Tq. Patoda District Beed 2. Baliram S/o Ashruba Bawane Age : Major, Occu.: Agri., 3. Premal W/o Sugriv Yede Age : Major, Occu.: Agri., 4. Sakhubai w/o Dyanoba Bawane Age : Major, Occu.: Agri., 5. Narayan S/o Rama Bawane, Age : Major, Occu.: Agri., 6. Padmini w/o Babasaheb Bawane, Age : Major, Occu.: Agri., All R/o Waghira, Tq. Patoda, District Beed .. RESPONDENTS Mr. S.A. Nagarsoge, Advocate h/f. Mr. N.L. Jadhav, Advocate for the Petitioner Mr. M.M. Patil (Beedkar), Advocate for the respondents ... CORAM : V.R. KINGAONKAR, J. DATED : 22ND JULY, 2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and (2) WP. 3097.2010 heard finally in view of the fact that the controversy relates only to the question whether appellate Court may grant stay order under Order 45 Rule 5 of the Code of Civil Procedure in respect of injunction decree. 2. There is no dispute about the fact that the petitioner filed suit (RCS no.10 of 1988) for declaration and injunction. Subject matter of the suit is the agricultural land bearing survey no.137/E (gat no.435) situated at village Waghira under Patoda Tehsil. After full fledged trial, the learned Civil Judge (Junior Division), Patoda decreed the suit. The respondents, who are original defendants 1 to 4, preferred appeal (RCA 137 of 2009). In that appeal they filed interim application (Exh.5) seeking stay to the decree appealed against. The learned District Judge-II, Beed allowed the application. He rendered the following order:- “ ORDER Effects of the decree dated 8.9.2009 based on judgment dated 31.8.2009 recorded in R.C.S. 10 of 1988 are hereby stayed (3) WP. 3097.2010 regarding clause no.2 of the operative part of the judgment” 3. It may be mentioned here that clause no.2 pertains to injunction decree rendered in favour of the petitioner (plaintiff). 4. Heard learned counsel for the parties. 5. At the threshold, let it be noted that injunction decree is executable only when breach is committed and brought to the notice of the executing Court. The manner of executing injunction decree is envisaged under Order 21 Rule 32 of the Code of Civil Procedure. The injunction decree remains dormant till breach thereof is complained by the decree holder. In other words, it is not a executable decree without commission of fault by the judgment debtor and moreover, the manner of execution is either attachment of the property of the judgment debtor or to put him in prison. Such contingency had not arisen nor it could be pre-supposed while granting interim stay. It is well settled that in (4) WP. 3097.2010 such a case the appellate Court cannot exercise powers under Order 41 Rule 5 of the Code of Civil Procedure likewise in other cases where the stay of the execution is called for. Perusal of Rule 5(1) reveals that the stay by the appellate Court is in respect of “execution of such decree” and the injunction decree is not immediately executable without noticing breach committed by the judgment debtor. In this view of the matter, the application filed by the respondents was outside the pale of Order 41 Rule 5(1) of the Code of Civil Procedure. It ought to have been dismissed being un-tenable. The impugned order is, therefore, perverse and deserves to be interferred with. 6. In the result, the Petition is allowed. The impugned order is set aside. Rule is made absolute accordingly. No costs. Sd/- [V.R. KINGAONKAR, J.] arp