1 2025:CGHC:4428 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 1149 of 2024 1. K. Akkama W/o Late Shri K. Thirpaya Aged About 66 Years R/o Harinagar, Ward No. 59, Tahsil And District Durg, Chhattisgarh. 2. K. Krishna D/o Late Shri K. Thirpaya Aged About 47 Years R/o Harinagar, Ward No. 59, Tahsil And District Durg, Chhattisgarh. ... Petitioner(s) versus 1. A. Sarswati W/o Chinnaya Aged About 40 Years R/o Road No. 8, Quarter No. 3 B, Sector-7, Bhilai Nagar, Tahsil And District Durg, Chhattisgarh. 2. K. V. Ramana S/o Late Shri K. Thirpaya Aged About 48 Years R/o Madhuban Nagar, Borsi, Tahsil And District Durg, Chhattisgarh. 3. Y. Padma D/o Late Shri K. Thirpaya Aged About 44 Years R/o Kirandul, Tahsil And District Dantewada Chhattisgarh. 4. D. Rupaa D/o Late Shri K. Thirpaya Aged About 42 Years R/o Sainikpuri, Nirmalnagar, Secundrabad, Hyderabad, Telangana. ... Respondent(s) For Petitioners : Mr. Jitendra Gupta, Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 24/01/2025 1) Petitioners have filed this petition challenging the order dated 05.11.2024 passed by learned 6th District Judge, Durg in RCA/68/2024 2 whereby application filed by petitioners under Order 41 Rule 5 of CPC has been rejected. 2) Learned counsel for the petitioners/ defendants No. 1 and 3 submits suit was filed by respondent No. 1/ plaintiff for declaration, possession and permanent injunction. He further submits that decree was passed on 03.01.2024 by the learned trial Court. He also submits that execution proceeding was initiated by the plaintiff and thereafter, Civil Appeal was preferred on 18.10.2024 along with an application under Order 41 Rule 5 of CPC for staying the execution of decree. He contends that learned appellate Court rejected the application on the grounds that appeal was not preferred immediately after passing of the decree and that the suit property is ancestral property. He further contends that learned appellate Court has further held that parties have equal right over the suit property, therefore, no stay can be granted. He also contends that learned appellate Court committed error of law while rejecting the application moved under Order 41 Rule 5 of CPC. 3) Heard. 4) Order 41 Rule 5(3) of CPC reads as under:- (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied— (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. 3 5) Perusal of documents placed on record indicates that a decree was passed on 03.01.2024 whereas appeal has been preferred after period of eight months. According to the provisions entailed in Order 41 Rule 5(3) of CPC, parties should approach the Court immediately after passing of the decree. In the present case, petitioners approached the Court at belated stage, thus application was not moved in accordance with the provisions of Order 41 Rule 5 of CPC, therefore in the opinion of this Court, learned appellate Court has not committed any error of law while rejecting the application moved by petitioners. 6) Consequently, this petition fails and is hereby dismissed. No order as to cost(s). however, learned appellate Court is directed to expedite the proceeding. Sd/- Rakesh Mohan Pandey JUDGE Ajinkya