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2014 DIGILAW 154 (MAD)

Raihan Beevi v. C. Rathinam

2014-01-23

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. Notice before admission was served on the respondent. The respondent is also represented by a counsel. Arguments advanced by Mr. R.Murali, learned counsel appearing for the petitioner and Mr. S.Thiruvenkataswamy, learned counsel appearing for the respondent herein are heard. The grounds of revision and the materials produced in the form of typed set of papers are also perused. 2. The revision petitioner is the judgment debtor in O.S.No.42 of 2006 on the file of the Court of District Munsif, Mannargudi. In the said suit, a declaration declaring the easementary right claimed by the respondent herein was made and a consequent relief of direction to the revision petitioner to remove the thatched shed put up over the said property causing obstruction to the enjoyment of the easementary right was also issued. Such a decree came to be passed on 13.2.2008. On appeal to the Sub Court, Mannargudi in A.S.No.18 of 2008, the decree of the Trial Court was confirmed on 10.11.2008. As against the decree of the lower appellate court confirming the decree of the Trial court, the revision petitioner preferred a second appeal in S.A.No.1231 of 2009. 3. According to the revision petitioner, the said second appeal was admitted on 19.11.2009 and substantial questions of law have also been identified. Though the revision petitioner moved a miscellaneous petition in the said second appeal for stay of execution of the decree, this court did not grant any order of interim stay. Having failed to obtain an order in the second appeal for stay of execution of the decree, the revision petitioner has chosen to approach the Trial Court under Order XX1 Rule 26 of the Code of Civil Procedure by filing E.A.No.7 of 2012 to stay the execution proceedings in E.P.No.42 of 2009. 4. The learned District Munsif, after hearing both sides, came to a correct conclusion that neither the Trial Court nor the court to which the decree has been sent for execution shall have the power to stay the execution after the aggrieved party has moved the appeal forum with an appeal along with an application to stay the execution of the decree. The forum in which the revision petitioner could seek the remedy is not the executing court and it is only the High Court before which the second appeal is pending. 5. The forum in which the revision petitioner could seek the remedy is not the executing court and it is only the High Court before which the second appeal is pending. 5. The very fact that the petitioner has chosen to move the executing court for stay after failing to get an interim order of stay in the High Court in the second appeal, may even amount to abuse of process of court. Hence, this court is of the considered view that the order of the learned District Munsif dismissing the application in E.A.No.7 of 2012 does not suffer from any defect or infirmity and it does not warrant interference by this court in exercise of its power. There is no merit in the revision and the same deserves to be dismissed. Accordingly, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.