Judgment : M. VENUGOPAL, J., 1. The Petitioners/Appellants have preferred the present Civil Miscellaneous Petition under Section 151 of Civil Procedure Code praying permission of this Court to permit them to remit the conditional amount of Rs.3,00,000/- as per Order in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005 dated 15.04.2005 and also for issuance of further directions. 2. The Learned Counsel for the Petitioners/Appellants submits that A.S.No.294 of 2005 has been filed against the Judgment and Decree of the trial Court in O.S.No.20 of 2004 on the file of District Court, Nagapattinam and earlier the suit in O.S.No.487 of 2000 has been filed on the file of the Learned Sub Judge, Tiruvarur and has been transferred to the District Court, Nagapattinam and renumbered as O.S.No.20 of 2004 and since the suit filed for recovery of a sum of Rs.6,00,000/- claimed by the Respondent/Plaintiff has been decreed, the present Appeal A.S.No.294 of 2005 has been filed before this Court. 3. Proceeding further, it is the contention of the Learned Counsel for the Petitioners/Appellants that in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005, the Honble Division Bench of this Court on 15.04.2005 has passed the following Order: "... There shall be interim stay on condition that the judgment debtors deposit a sum of Rs.3,00,000/- to the credit of O.S.No.20 of 2004 on the file of the District Judge, Nagapattinam, on or before 13.06.2005 failing which the interim order granted shall stand vacated without any further reference to this Court. On such deposit, the decree holder would be entitled to withdraw the same without notice to the judgment debtors". and disposed of the said miscellaneous petition and because of the family circumstances prevailing in Petitioners/Appellants family the sum of Rs.3,00,000/-(conditional order) has not been complied with and further the Petitioners/Appellants also filed Modification Petition over conditional order which has been dismissed at that point of time and now the Petitioners/Appellants are willing to deposit the conditional amount of Rs.3,00,000/- specified in the C.M.P.No.4739 of 2005 dated 15.04.2005 because of the fact that the Respondent/Plaintiff has taken steps to bring the suit properties in auction and apart from the conditional amount of Rs.3,00,000/-the Petitioners are also willing to pay any other money as directed by this Court and accordingly prays for allowing the C.M.P.No.1532 of 2010 to promote substantial cause of justice. 4. 4. The Learned Counsel for the Petitioners vehemently urges before this Court that due to family circumstances there has occasioned a delay in projecting the C.M.P.No.1532 of 2010 before this Court by the Petitioners/Appellants and the auction of the property is slated on 09.11.2010 and the present auction is the resultant effect of the dismissal of C.R.P.No.2834 of 2009 and the interest of justice will be met if this Court passes a conditional order thereby permitting the Petitioners/Appellants to remit the conditional amount of Rs.3,00,000/- as per Order made in C.M.P.No.4739 of 2005 dated 15.04.2005 to prevent an aberration of justice, saving the interest of the parties concerned. 5. Per contra, it is the contention of the Learned Counsel for the Respondent/Plaintiff that the C.M.P.No.1532 of 2010 filed by the Petitioners/Appellants praying permission of this Court to permit them to remit the conditional amount of Rs.3,00,000/-is not maintainable both on facts and law and as a matter of fact the conditional order passed by this Court in C.M.P.No.4739 of 2005 dated 15.04.2005 directing the Petitioners/Appellants to deposit a sum of Rs.3,00,000/-to the credit of O.S.No.20 of 2004 on the file of the District Judge, Nagapattinam on or before 13.06.2005 has not been complied with by the Petitioners/Appellants and the present C.M.P.No.1532 of 2010 has been filed by the Petitioners/Appellants after a long lapse of almost 5 years and therefore, prays for dismissal of the C.M.P.No.1532 of 2010 in furtherance of substantial cause of justice. 6. Expatiating his arguments, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the 2nd Stay Petition C.M.P.No.1532 of 2010 is not maintainable before this Court at this stage and there are no different/changed circumstances after the order obtained by the Petitioners/Appellants in their favour in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005 dated 15.04.2005 7. According to the Learned Counsel for the Respondent/Plaintiff, the Petitioners/Appellants oppose the E.P.No.2 of 2008 now pending before the District Court, Tiruvarur on the ground that that the Execution Petition filed by the Respondent/Plaintiff will not lie because of the fact that the Petitioners undivided share cannot be brought for sale and as against the Order passed in Execution Petition, C.R.P.No.15 of 2007 has been filed and in C.R.P.No.15 of 2007, 20,000 Sq.ft. of Rice Mill property has been ear-marked as the area of sale as against 1,18,603 Sq.ft. of Rice Mill property has been ear-marked as the area of sale as against 1,18,603 Sq.ft. and later when the value of the land has been fixed at Rs.125/-per Sq.ft., as suggested by Judgment Debtor the executing Court accepted it and fixed the value for the suit land as Rs.125/- per Sq.ft. and once again C.R.P.No.2834 of 2009 has been preferred by the Petitioners/Appellants before this Court and this Court on 26.05.2010 dismissed the Civil Revision Petition inter alia observing that "... this Court is of the considered view that the Petitioners are not in any way prejudiced, since it is for the Actin Purchaser to work out his remedy. Further, looking at from any angle, after accepting the guideline value of Rs.125/-per Sq.ft., and making an endorsement to that effect, the Petitioners cannot turn around and take a contra plea in any fashion" and resultantly dismissed the revision petition holding that the same lacks bona fide and the Respondent/Decree Holder is interested in realising his money and it is open to the Petitioners/Appellants to deposit a sum of Rs.14,00,000/-and odd which they owe to the Respondent/Plaintiff as on today (the amount not paid from the year 1996). 8. Countering the submissions of the Learned Counsel for the Respondent/Plaintiff, the Learned Counsel for the Petitioners/Appellants cites the decision S.A.Abubacker V. P.K.Rajaram 1999 (1) CTC 140 , (1999) 1 MLJ 39 (to lend support to the contention that the 2nd Stay Petition is maintainable for the same relief made in the 1st Petition, based on different facts), wherein at Para 16 to 18 it is laid down as follows: "... 16. On a consideration of the aforesaid decisions, I am of the view that the present stay petition, which is based on certain new facts, is maintainable. 17. The next question is whether the petitioner is entitled for stay. In the affidavit it is stated that the petitioner has paid the rents for some time. He has also paid a sum of Rs.10,000 towards arrears of rent on 13.10.1997. Again on 07.11.1997 another sum of Rs.12,000 was paid. Only on account of the fathers ill-health some months rent, as directed in the earlier Civil Miscellaneous Petition, could not be paid. On account of some change in the circumstances, there was failure on the part of the petitioner to pay rents. Again on 07.11.1997 another sum of Rs.12,000 was paid. Only on account of the fathers ill-health some months rent, as directed in the earlier Civil Miscellaneous Petition, could not be paid. On account of some change in the circumstances, there was failure on the part of the petitioner to pay rents. In the circumstances, he should be given a chance to pay the rents and on such payment, the stay should be continued. 18. In view of the above, the petitioner is directed to pay the entire arrears upto and inclusive of the month of September, 1998 before 10th of October, 1998. He should also continue to pay the rents from October 1998 onwards on or before 10th of the succeeding English calendar month, as mentioned in the order dated 7.11.1997 in C.M.P.No.14166 of 1997. The petition is ordered and the stay is granted on the above terms." 9. The sworn affidavit filed by the 1st Petitioner/ 1st Appellant in C.M.P.No.1532 of 2010 is dated 18.10.2010 and the same has been filed before this Court on 19.10.2010. Nearly, 5 = years have elapsed from the date of passing of the order by this Court in Division Bench in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005 dated 15.04.2005. 10. On a perusal of the Order dated 15.04.2005 in C.M.P.No.4739 of 2005 passed by this Court indicates that this Court has passed earlier an order dated 31.03.2005 granting interim stay until further orders and the said order has been modified by passing an order of interim stay on condition that the Judgment Debtor deposit a sum of Rs.3,00,000/- to the credit of O.S.No.20 of 2004 on the file of the District Judge, Nagapattinam, on or before 13.06.2005 failing which the interim order granted shall stand vacated without any further reference to this Court and moreover, the Court has also ordered that on such deposit, the decree holder has been permitted to withdraw the same without notice to the Judgment Debtors. The non-compliance of the conditional order passed in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005 dated 15.04.2005 is not in favour of the Petitioners/Appellants, as opined by this Court. Because of the Petitioners/Appellants non-compliance with the conditional order dated 15.04.2005 in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005, the said order has worked out itself. The non-compliance of the conditional order passed in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005 dated 15.04.2005 is not in favour of the Petitioners/Appellants, as opined by this Court. Because of the Petitioners/Appellants non-compliance with the conditional order dated 15.04.2005 in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005, the said order has worked out itself. The conditional order dated 15.04.2005 in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005 cannot be reopened or resurrected by this Court since this Court does not see any change of circumstances in any manner. 11. In the decision S.A.Abubacker V. P.K.Rajaram 1999 (1) CTC 140 , (1999) 1 MLJ 39 it is mentioned in the affidavit in C.M.P.No.8779 of 1998 in C.R.P.No.2736 of 1997 that the Petitioner has paid rents for sum time. He has also paid a sum of Rs.10,000/-towards arrears of rent on 13.10.1997. Again on 07.11.1997 another sum of Rs.12,000/-was paid etc. But in the present case on hand the amount remains unpaid from the year 1996 and it has swelled to Rs.14,00,000/-and odd according to the Respondent/Plaintiff and Rs.11,79,053/- according to the Petitioners/Appellants. 12. He has also paid a sum of Rs.10,000/-towards arrears of rent on 13.10.1997. Again on 07.11.1997 another sum of Rs.12,000/-was paid etc. But in the present case on hand the amount remains unpaid from the year 1996 and it has swelled to Rs.14,00,000/-and odd according to the Respondent/Plaintiff and Rs.11,79,053/- according to the Petitioners/Appellants. 12. On a careful consideration of respective contentions, this Court is of the considered view that the Order dated 31.03.2005 granting interim stay until further orders has been modified in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005 dated 15.04.2005 with a conditional order being passed by granting interim stay on condition that the Judgment Debtors deposit a sum of Rs.3,00,000/-to the credit of O.S.No.20 of 2004 on the file of the Learned District Judge, Nagapattinam on or before 13.06.2005 etc., and further this Court also opines that the default clause in the conditional order in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005 has worked out itself because of the non-compliance of the same by the Petitioners/Appellants and when the E.P.No.2 of 2008 is posted for hearing tomorrow for bringing the property to auction before the District Court, Tiruvarur at this distance of time the C.M.P.No.1532 of 2010 filed by the Petitioners/Appellants is not per se maintainable before this Court and after a long lapse of time of nearly 5 = years this Court is not inclined to permit the Petitioners/Appellants to remit the conditional amount of Rs.3,00,000/- as per order made in C.M.P.No.4739 of 2005 in A.S.No.294 of 2005 dated 15.04.2005 and resultantly, the C.M.P.No.1532 of 2010 filed by the Petitioners/Appellants is dismissed by this Court as devoid of merits without costs. 13. In the result, the Civil Miscellaneous Petition C.M.P.No.1532 of 2010 is dismissed, leaving the parties to bear their own costs. It is open to the Petitioners/Appellants to approach the Executing Court viz., Learned District Judge, Tiruvarur in E.P.No.2 of 2008 for seeking appropriate remedy thereto in the manner known to law and in accordance with law.