IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2210 of 2007 Between: I.W. Carey .. Petitioner AND The Chairman, Church of South India, Holy Trinity Church, Anantapur rep. by Rev. M.S. Sudhakar and another .. Respondents Petition against the order in I.A. No.53 of 2007 in A.S. No.19 of 2007, dated 29-03-2007 on the file of the I Additional District Judge, Ananthapur. The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri M. Ganga Rao, Advocate for the petitioner, the Court made the following ORDER: The civil revision petition is directed against the order of the I Additional District Judge, Ananthapur in I.A. No.53 of 2007 in A.S. No.19 of 2007 staying the decree of the trial Court on deposit of costs of Rs.413/- by the plaintiff subject to any order of any higher Court. The stay petition was filed by the appellants claiming that the judgment and decree in O.S. No.328 of 2005 on the file of the Principal Junior Civil Judge, Ananthapur are taken advantage by the revision petitioner herein to bring pressure on the appellants to enforce the decree. Claiming to have a good case in the appeal, the appellants sought for stay of operation of the decree. The revision petitioner herein appears to have filed a counter on 02-05-2007, a copy of which is on record, contending that elections for 2007-2009 were scheduled to be held on 12-05- 2007 and the revision petitioner exercising his right as a voter since 35 years earlier cannot be deprived of the same. The impugned order appears to have been passed even prior to filing of the said counter and the appellate Court proceeded in the absence of any caveat by the revision petitioner. It felt that inclusion of the name of the revision petitioner in the voters’ list will defeat the purpose of the appeal and as originally his name was not in the voters’ list, there were sufficient grounds to grant stay. In the grounds of revision and during his arguments, Sri M. Ganga Rao, learned counsel for the revision petitioner emphasized that the revision petitioner, a member of the Church of South India and a voter since 35 years, could not have been deprived of his rights, more so when he obtained the judgment and decree on merits. The affidavit filed in support of I.A. No.53 of 2007 did not state as to what will be the prejudice or loss that will be caused to the appellants in case of enforcement of the judgment and decree obtained on merits. The judgment and decree were after contest and any stay of execution of a decree under appeal can only be for sufficient cause and not by reason only of an appeal having been preferred against the decree. The mandate of Rule 5 of Order XLI of the Code of Civil Procedure is evident from the unambiguous language used in Sub-rule (3) thereof prohibiting any stay of execution unless substantial loss is shown to be the result to the party applying for stay in the absence of a stay and when the affidavit itself never uttered about any such substantial loss or showed any sufficient cause, the appellate Court could not have resorted to the ex parte order of stay merely due to the absence of a caveat or due to the likelihood of the purpose of the appeal being defeated in the absence of a stay. Though the respondents are served with notice of this revision petition, they did not enter appearance herein and the impugned order was the subject of interim suspension for a period of six weeks as per the orders on C.R.P.M.P. No.2871 of 2007, dated 16-05-2007. The judgment and decree obtained on merits by the revision petitioner could not have been so lightly interfered with as stated above and hence, the impugned order has to be set aside. Accordingly, the order of the I Additional District Judge, Ananthapur in I.A. No.53 of 2007 in A.S. No.19 of 2007, dated 29-03-2007 is set aside and the civil revision petition is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 01-07-2010 Svv