Maina, J: G
The application before this Court is for stay of execution pending appeal. At the commencement of the hearing, Mr Majithia raised a preliminary point, that the application should be dismissed because when it was filed, there was no appeal. He referred the court to the decision of the Court of Appeal in Ujagar Singh v Runda Coffee H Estates Ltd (1) that `an appeal must be in being before an application for stay can be entertained by the Court appealed from'.
On his part, the applicant said that he could not file an appeal immediately because he had not been supplied with a copy of the proceedings and ruling of the Principal Resident Magistrate. He admitted that he only gave notice of appeal but he had not filed I an appeal.
There is no dispute that the applicant had not filed an appeal when he applied for stay of A execution. The application was made under Order 21 Rule 24(1) and Order 57 Rule 1 of the Civil Procedure Code, but as Mr Majithia submitted the Principal Resident Magistrate dealt with three provisions exhaustively. They are not relevant to the B application before this Court. Order 24 deals with stay of execution by a Court which issued the decree. The relevant provision on stay of execution pending appeal is Order 39 Rule 5 of the Civil Procedure Code. I agree with Mr Majithia that a court cannot entertain an application for stay of execution pending appeal when no appeal has been C filed. But as the applicant pointed out, he filed the appeal immediately after he obtained certified copies of the proceedings and ruling of the district court
I think it is pertinent to state here that the dispute between the parties is over tenancy of premises which belong to the second respondent, the National Housing Corporation. D The applicant is in possession of the premises. He resists the eviction, and his appeal filed after this application was filed, is against the decision of the district Court which dismissed his application for stay of execution.
In my view, Order 39 Rule 5 of the Civil Procedure Code which gives power to the Court E to grant a stay of execution pending appeal contemplates that an appeal has been filed and the appellant then seeks the order for stay of execution. If there is no appeal filed, there cannot be a basis to apply for stay of execution. It is true that the applicant filed the appeal after this application was filed. But as the Court of Appeal said in the case of F Ujagar Singh v Runda Coffee (supra) the Court cannot entertain an application for stay of execution where no appeal has been filed.
The preliminary objection is upheld, and the application is dismissed.