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2016 DIGILAW 1213 (PNJ)

Krishan Alias Krishan v. Harbans Lal

2016-04-27

DARSHAN SINGH

body2016
JUDGMENT : DARSHAN SINGH, J. 1. This revision petition has been filed against the order dated 20.02.2016 passed by the learned Civil Judge (Senior Division), Bathinda, whereby the application moved by the petitioner-JD for staying the execution proceedings has been dismissed. 2. Learned counsel for the petitioner contended that the regular second appeal filed against the impugned decree is pending before this Court. The learned executing Court should have stayed the proceedings in view of Order 21, Rule 29 of the Code of Civil Procedure, 1908 (for short the `CPC') in order to safeguard the interest of the petitioner. Thus, he contended that the impugned order is illegal. 3. I have duly considered the aforesaid contentions. 4. Learned counsel for the petitioner has relied upon the provisions of Order 21, Rule 29 CPC, which reads as under:- "Stay of execution pending suit between decree-holder and judgment-debtor - Where a suit is pending in any Court against the holder of a decree of such Court [or of a decree which is being executed by such Court], on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided." 5. As per the aforesaid provision of law, the executing Court may stay the execution of the decree if the JD has filed any suit against the decree holder but in the instant case, admittedly the petitioner-JD has not filed any suit against the decree holder to challenge the decree under execution, but the petitioner-JD has only preferred the regular second appeal against the decree under execution. 6. Order 41, Rule 5, Sub Rule (1) reads as under :- "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." 7. As per the aforesaid provision of law, mere filing of an appeal will not operate as stay of proceedings for the execution of the decree under appeal. It is only the appellate Court which can stay the execution of such decree. As per the aforesaid provision of law, mere filing of an appeal will not operate as stay of proceedings for the execution of the decree under appeal. It is only the appellate Court which can stay the execution of such decree. So, the only remedy available to the petitioner was to move the application in the regular second appeal filed by him to seek the stay of the execution of the decree. The learned executing Court has not committed any illegality in declining the application filed by the petitioner to stay the execution proceedings, rather the learned executing Court had no legal authority to stay the execution proceedings merely on the ground the decree is under appeal. 8. Consequently, the present revision petition has no merits and the same is hereby dismissed.