Page 1 of 4. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.550 of 2026 Subasini Bagh ..... Petitioner Represented by Adv. - Rajib Lochan Pattanaik -versus- Premo Patro Bagh & Ors. ..... Opposite Parties Represented by Adv. - CORAM: THE HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No. ORDER 31.03.2026 01. 1. This matter is taken up through Hybrid Arrangement (Virtual/ Physical Mode). 2. Heard learned counsel for the Petitioner. Perused the CMP application as well as the prayer made therein. 3. By filing the present CMP application, the Appellant in R.F.A. No.08 of 2024, pending in the Court of learned Addl. District Judge, Koraput, has approached this Court by challenging order dated 05.03.2026 passed by the Appellate Court in the abovenoted appeal. 4. Learned counsel for the Petitioner at the outset contended that the Opposite Paty No.1 as plaintiff filed a suit for partition. He further submitted that the aforesaid suit was disposed of vide a preliminary decree. The Petitioner, who was a Defendant in the suit, being aggrieved by such preliminary decree preferred an appeal before the 1st Appellate Court which was registered as R.F.A. No.08 of 2024. During the pendency of the aforesaid appeal, the Page 2 of 4. Respondent No.1 as plaintiff initiated an execution case No.01 of 2024. He further submitted that the Petitioner being aggrieved by the judgment and decree of the trial court has approached the 1st Appellate Court and during the pendency of the first appeal the impugned judgment and decree is sought to be executed by filing the aforesaid execution case. He further submitted that although the Appellant has a very good prima facie case, however, the learned trial court without considering such prima facie case rejected the application of the Petitioner-defendants filed under Order 41 Rule 5 seeking stay of the execution proceeding to be disposal of the appeal. In course of argument, learned counsel for the Petitioner, referring to the impugned order dated 05.03.2026, submitted before this Court that the learned trial court has rejected the application under Order 41 Rule 5 of the CPC with an observation that the learned trial court without giving any opinion regarding merit of the case/appeal rejected the application of the Petitioner filed with a prayer for stay of the execution. 5. Perused the impugned rejection order dated 05.03.2026. On perusal of the aforesaid impugned order, this Court is of the view that the learned trial court has not discussed with regard to the merits of the appeal. Moreover, he has also not come to a conclusion as to whether the Appellant has a prima facie case on the basis of the grounds taken up the appeal memo. On the contrary, the learned 1st Appellate Court rejected the application for stay of the execution case mechanically with the observation that <without giving any opinion with regard to the merits of the case/appeal, the application of the Petitioner has been rejected.= In the aforesaid context, this court would like to observe here that at the time of consideration of the application for stay of the execution proceeding, the learned 1st Page 3 of 4. Appellate Court is required to examine such application on the basis of the merits involved in the appeal. Such application under Order 41 Rule 5 could not have been rejected by the learned 1st Appellate Court mechanically without examining the merits of the appeal. On a careful scrutiny of the impugned order it appears that the learned trial court has not at all considered the merits of the appeal as there is no such discussion in the impugned order. Such mechanical rejection of an application with a prayer for stay of the execution proceeding would cause serious prejudice to a party whose appeal otherwise has merits. The learned trial court should have examined the grounds taken in the appeal and should have considered the validity of such grounds keeping in view the impugned judgment and decree. However, any such finding with regard to the prima facie case involved in the appeal is absent in the impugned order dated 05.03.2026. 6. On a careful examination of the impugned order dated 05.03.2026, this Court is of the view that the learned trial court has failed to exercise his jurisdiction as per law as is required under Order 41 Rule 5 of the CPC. Hence, this Court is of the considered view that the impugned order dated 05.03.2026 is unsustainable in law. Accordingly, the same is hereby set aside. Further, the matter is remanded back to the learned Appellate Court to reconsider the application of the Petitioner by taking into consideration the merits of the appeal and the grounds taken in the appeal memo. In the event the learned trial court comes to a conclusion that there is merit in the grounds taken in the appeal memo, then necessary follow up orders be passed under Order 41 Rule 5 CPC. Otherwise, it is open to the learned trial court to reject the application of the Appellant-Petitioner filed under Order 41 Rule 5 of the CPC. Let the Petitioner approach Page 4 of 4. the learned trial court within two weeks from today along with copy of today’s order. In such eventuality, the learned Appellate Court shall consider and dispose of the application of the Petitioner under 41 Rule 5 of CPC within a period of four weeks thereafter after providing opportunity to all concerned. 7. Since this order has been passed at the stage of admission without issuing notice to the Opposite Parties. Liberty is granted to the Opposite Parties to seek for variation/ modification of this order in the event it is found that the Petitioner has suppressed any material information or mislead the Court in any manner. 8. With the aforesaid observation and directions, the CMP application stands disposed of. ( Aditya Kumar Mohapatra) Judge Rubi