The issue raised by you is covered in Rule 5 of Order 41 of the Civil Procedure Code, the relevant extract of which is reproduced below:
“5. Stay by Appellate Court.— (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
Explanation.— An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.”
It should be clear from this Rule that the execution of the decree is not stayed merely because an appeal has been preferred from the decree. The stay has to be ordered by the appellate court. Thus, the Appellate Court can, for sufficient cause, order stay of execution of such decree. But, merely because of filing of an appeal, the execution of the decree is not stayed automatically and the execution can continue if there is no stay.
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