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2001 DIGILAW 1101 (AP)

Nekkanti Gopala Krishna Murthy v. Darianka Ramalakshmi

2001-09-25

P.S.NARAYANA

body2001
( 1 ) THE Revision Petitioner is the 1st respondent-Decree-holder in E. A. No. 480/99 in E. A. No. 430/99 in E. P. No. 98/95 in O. S. No. 16/85 on the file of subordinate Judge, Tanuku. ( 2 ) THE Revision Petitioner filed a suit o. S. No. 16/95 on the-file of Subordinate judge, Tanuku for the relief of specific performance of an agreement of sale dated 3-7-1984 against respondents 3 and 4 and the suit was decreed on 22-3-1994 and the said decree became final and the Revision petitioner filed E. A. No. 430/99 in e. P. No. 98/95 for taking possession of the schedule property and at that juncture the respondents 1 to 3 herein filed an application E. A. No. 480/99 for stay of execution of the decree in O. S. No. 16/85 under order 21 Rule 26 r/w. Section 151 c. P. C. and the Revision Petitioner had opposed the said application stating that they being strangers to the litigation, such parties have no locus standi to maintain an application under Order 21 Rule 26 C. P. C. and even in the facts and circumstances of the case Section 151 C. P. C. cannot be invoked. The Court below after discussing the matter at paragraph-5 of the impugned order had allowed the said application granting stay for a specific period and the revision petitioner, aggrieved by the same, he preferred the present Revision. ( 3 ) SRI R. Sudhir, counsel representing Sri c. Kodanda Ram, the learned counsel for the Revision petitioner had made the following submissions. The parties who filed the application being strangers and non-parties to the litigation, have no locus standi to file an application under Order 21 rule 26 C. P. C. Even otherwise, the suit o. S. No. 16/85 specified supra, was decreed on 22-3-1994 and the purchase alleged by them was on 19-9-1991, which is hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. The learned counsel also had contended that to attract the provisions of Order 21 Rule 26 C. P. C. , several ingredients are to be satisfied and since none of those conditions are satisfied, the Court below had committed a jurisdictional error in allowing the application. The learned counsel also had contended that to attract the provisions of Order 21 Rule 26 C. P. C. , several ingredients are to be satisfied and since none of those conditions are satisfied, the Court below had committed a jurisdictional error in allowing the application. The learned counsel also had placed reliance on The Allaliabad Bank Ltd. , calcutta v. Chaitram choudhari and others, m/s. Xaca (India) Pvt. Ltd. v. Jarmina Prasad kaviraf, Surendranath Mohanty and another v. Harthar Das and another and also Ram Lal v. Radhey Lal and another. ( 4 ) SRI K. V. Subramanya Narsu, the learned counsel representing the contesting respondents had contended that the Court below had exercised the discretion and on appreciation of facts and circumstances had arrived at a conclusion that stay for a limited period has to be granted and hence such an order does not warrant interference in Revision. It was also contended that even otherwise though the provisions of order 21 Rule 26 C. P. C. cannot be invoked in a matter of this nature, the Court is having power to grant an order under section 151 C. P. C. ( 5 ) AFTER hearing both the counsel at length it may be relevant to have a glance at order 21 Rule 26 C. P. C and the provision roads as follows:- (1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay, or for any other order relating to the decree or execution which might have been made by such Court of first instance or appellate Court if execution had been issued thereby or if application for execution had been made thereto. (2) Where the property or person of the Judgment-debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application. Power to require security from, or impose conditions upon. Judgment- debtor. (2) Where the property or person of the Judgment-debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application. Power to require security from, or impose conditions upon. Judgment- debtor. (3) Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor, [the court shall require] such security from, or impose such conditions upon, the Judgment- debtor as it thinks fit. The opening words of the provision read "the Court to which a decree has been sent for execution shall. . . " In the present case this condition is not satisfied. Apart from it, it is also necessary to show sufficient cause to stay the execution of such decree for reasonable time and the impugned order does not record the reasons at all relating to the exercise of the discretion and the circumstances warranting the grant of such an order. The provision also specifies ". . to enable the judgment-debtor to apply to the court by which the decree was passed". Hence except the Judgment-debtor, the non-parties or strangers to the litigation cannot invoke the provisions of Order 21 rule 26 C. P. C. In the decision referred (4) supra, it was held that execution can be stayed only by the Court to which the decree is sent for execution and that too only temporarily. In the decision referred (3) supra, at page 79 while dealing with order 21 Rule 26 (1) C. P. C. it was observed that this rule makes a distinction between the Court to which the decree is sent for execution and the Court by which the decree was passed i. e. , between the transferor and the transferee Court and the transferee Court has no jurisdiction to grant an absolute order of stay and it can stay the execution of decree only for a reasonable time as denoted by the underlined expression ". . . for a reasonable time". . . for a reasonable time". In the decision referred (2) supra, at page 391 it was held that it is manifest from the provisions of this sub-rule that the transferee Court has only a limited power of staying the execution of the decree transferred to it for execution and it can do so only for a reasonable time so that the judgment-debtor may move the Court which passes the decree or any Court having appellate jurisdiction in respect of the decree for obtaining an order of stay of the execution. In the decision (1) referred supra, it was observed that Order 21 rule 26 (3) C. P. C. is applicable only when a request for stay of execution is made and when the court holds that the execution cannot be proceeded with, no question of stay arises. On a perusal of the impugned order I am satisfied that none of the essential conditions for invoking the provisions of Order 21 Rule 26 C. P. C. are available in the present case. Even otherwise, when a specific provision is provided the parties cannot resort to even section 151 C. P. C. and hence the contention that the impugned order of this nature can be impugned under Section 151 C. P. C. also cannot be accepted. Apart from all these, even on admitted facts, the very purchase of these non-parties to the litigation is affected by doctrine of Us pendens and absolutely there is no reason, much less sufficient reason, to grant such an order. Further more, Order 21 Rule 26 sub-rule (3) dealing with power to require security from or imposing conditions upon Judgment-debtor specifically says that before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor, the Court shall require such security from or impose such conditions upon the Judgment-debtor as is thinks fit. The words employed in sub-rule (3) of Order 21 Rule 26 C. P. C. are ". . . the Court shall require. . . " Hence while making an Order under order 21 Rule 26 c. P. C. it is obligatory on the part of the court to require the opposite party such security or impose such conditions upon the Judgment-debtor as it thinks fit. . . the Court shall require. . . " Hence while making an Order under order 21 Rule 26 c. P. C. it is obligatory on the part of the court to require the opposite party such security or impose such conditions upon the Judgment-debtor as it thinks fit. Hence in any view of the matter, the impugned order was made by the Court below totally in error of exercise of jurisdiction and hence such an order is not sustainable in law. ( 6 ) IN view of the foregoing discussion, the impugned order dated 21-12-1999 made in E. A. No. 480/99 in E. A. No. 430/99 in e. P. No. 98/95 in O. S. No. 15/85 on the file of subordinate Judge, Tanuku, is hereby set- aside and the Civil Revision Petition is allowed, with costs.