Order 41 Rule 5 CPC: Mere Filing Of Appeal Would Not Operate As A Stay Of Decree: SC

The Supreme Court while passing an Order observed that as per Order 41 Rule 5 of the Civil Procedure Code (CPC) unless the appeal is listed and there is an interim order, the mere filing of an appeal would not operate as a stay of the decree.

The petitioner had approached the Patna High Court seeking a direction to the District Magistrate to grant a No Objection Certificate (NOC) for starting MS/HSD retail outlet dealership over the land.

A Bench of Justice A.S. Bopanna and Justice Hima Kohli held, “… 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 Bench further said that the High Court was justified in rejecting the petition.

Advocate Birendra Kumar Mishra appeared for the petitioner while Advocate Azmat Hayat Amanullah represented the respondents.

In this case, the District Magistrate rejected the request of the petitioner for the issue of NOC to start his retail outlet dealership. Thereafter, the High Court also dismissed his petition on the ground that the appeal was filed before the Court and the same was yet to come up for hearing.

The Apex Court after hearing the contentions of both parties said, “… the rejection of the NOC by the District Magistrate is held unjustified and the District Magistrate is directed to take note of the decree passed on 25.08.2022 and issue the NOC within a period of two weeks from this day to the petitioner, which shall however, remain subject to the result of the appeal pending before the High Court.”

The Court, therefore, directed the DM to issue the NOC within a period of two weeks.

Accordingly, the Court dismissed the order passed by the High Court.

Cause Title- Sanjiv Kumar Singh v. The State of Bihar & Ors.

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