Order XLI Rule 5 CPC - Mere Filing Of Appeal Would Not Operate As A Stay Of Decree : Supreme Court

The Supreme Court observed that mere filing of the appeal would not operate as a stay under Order XLI Rule 5 of Code of Civil Procedure.

In this case, the petitioner had approached the Patna High Court seeking a direction to the District Magistrate to grant ‘No Objection Certificate’ (NOC) for starting MS/HSD retail outlet dealership over land. The High Court dismissed the petition on the ground that as against the decree passed in favour of the petitioner, an appeal has been filed before the High Court and the same is yet to come up for hearing. Against this judgment, the petitioner approached the Apex Court.

The Apex Court bench observed that the High Court was not justified in rejecting the petition for this reason.

"Keeping in view the provisions as contained in Order 41 Rule 5 of CPC, unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay. If that be so, the judgment and decree dated 25.08.2021 would enure to the benefit of the petitioner as on today and the rejection of the NOC only on the ground that the appeal has been filed, would not be justified.", the court said.

The court, allowing the appeal, directed the District Magistrate is directed to take note of the decree and issue the NOC within a period of two weeks to the petitioner. It clarified that this will remain subject to the result of the appeal pending before the High Court.

Case details

Sanjiv Kumar Singh vs State Of Bihar | 2023 LiveLaw (SC) 63 | Special Leave to Appeal (C) No(s). 19038/2022 | 24 January 2023 | Justices A S Bopanna and Hima Kohli

For Petitioner(s) Mr. Dhruv Mehta, Sr. Adv., Mr. Birendra Kumar Mishra, AOR Mr. Manish Shrivastav, Adv., Ms. Poonam A, Adv., Mr. Sirajuddin, Adv.

For Respondent(s) Mr. Azmat Hayat Amanullah, AOR Mr. T. G. Shahi, Adv.

Headnotes

Code of Civil Procedure, 1908 ; Order 41 Rule 5 CPC - Unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay.

Summary : Writ petition seeking a direction to the District Magistrate to grant ‘No Objection Certificate’ (NOC) for starting MS/HSD retail outlet dealership over land in view of a decree passed in his favour - High Court dismissed the WP on the ground that as against the decree passed in favour of the petitioner, an appeal has been filed before the High Court and the same is yet to come up for hearing - Allowing the SLP, the Supreme Court observed : Unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay. If that be so, the judgment and decree would enure to the benefit of the petitioner as on today and the rejection of the NOC only on the ground that the appeal has been filed, would not be justified.

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