IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.55 of 2009 MD. IBRAHIM Versus MD. MUSTAQUE ALAM & ANR ----------- 2 16.1.2009 Heard counsel for the petitioner. The decree for eviction was passed on 28.9.2007 which made the petitioner-judgment debtor liable for being evicted within a period of two months. The appeal was filed within the aforementioned period of two months i.e. on 29.10.2007. On expiry of a period of sixty days, the plaintiffs-opposite parties had levied the execution case. The petitioner thereafter on 15.4.2008 had filed an application under Order XLI Rule 5 of the Code of Civil Procedure for stay of the execution case. Counsel for the petitioner submits that the said application is pending till date and the stay matter has not yet been disposed of. It would further transpire that two applications were also filed by the petitioner before the executing court and under Order XXI Rule 26 on 24.4.2008 and 18.7.2008 to stay the further proceedings of the execution case but they were also however rejected. Thereafter, the petitioner had filed a petition on 2.8.2008 which has been disposed of by holding that the further proceeding of the execution case cannot be stayed inasmuch as there is no order of stay by the 2 appellate court. It is not in doubt that the period of two months as set out in the decree dated 28.9.2007 which expired on 28.11.2007 and till that date, the petitioner had not even filed an application seeking stay. It is well settled that mere filing of an appeal will not amount to stay of the decree. In that view of the matter, there was no option for the executing court but to reject the prayer of the petitioner. Counsel for the petitioner would place his reliance on three judgments of this Court namely in the case of Sahid Mian & Anr. Vs. Anirudh Prasad & Ors. reported in 1998 (2) PLJR 127, Smt. Tej Rani Devi & Ors. Vs. Smt. Indira Devi & Ors. reported in 2001 (1) PLJR 661 and Ram Ekbal Sah & Ors. Vs. Vimal Kumar Singh & Ors. reported in 2008 (4) PLJR 258. All these judgments only lay down with regard to the principles under Order XLI Rule 5 of the C.P.C. and the necessity of stay by the appellate court. Such is not the case here. Here the executing court is faced with the situation that there was no stay of the decree from appellate court and in that view of the matter, merely because the petitioner claims to be residing in the premises in question for which a decree of eviction has already been passed on 28.9.2007, cannot be kept pending awaiting the decision 3 of the appellate court. That being so, this Court would not find any reason to interfere with the impugned order and accordingly, this application is dismissed. Rsh (Mihir Kumar Jha, J.)