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2016 DIGILAW 615 (MAD)

R. Senthilkumar v. S. Ayyalusamy

2016-02-16

V.M.VELUMANI

body2016
ORDER : V.M. Velumani, J. 1. The Civil Revision Petition is filed against the fair and decreetal order, dated 14.12.2015, passed in E.A. No. 171 of 2015 in E.P. No. 30 of 2013 in O.S. No. 117 of 2012, on the file of the Principal District Munsif Court, Sankarankovil. The revision petitioners are the defendants. The respondent is the plaintiff. The respondent filed a suit in O.S. No. 117 of 2012 for declaration and for recovery of possession. After contest, the suit was decreed by the Trial Court. Based on the decree, the respondent filed E.P. No. 30 of 2013. The petitioners filed first appeal in A.S. No. 3 of 2014, before the Sub Court, Sankarankoil. The first appellate Court dismissed the appeal on 25.09.2014. Thereafter, the petitioners filed Second Appeal in S.A.SR. No. 13009 of 2015, before this Court on 17.03.2015 and the same was returned by the Registry for rectification of some defects and the said appeal papers got mixed with some other papers and therefore, the same could not be represented in time. Again it was represented along with condone delay petition before this Court. In the circumstances, the petitioner filed E.A. No. 171 of 2015 under Order 21 Rule 26 of CPC requesting Execution Court to stay of the Execution proceedings, till the disposal of the second appeal. The respondent filed counter affidavit and submitted that the petitioners can get stay of decree only in Appellate Court. The executing Court has to implement the decree as it cannot go beyond the decree. 2. The learned Trial Judge considering the materials on record dismissed the E.A filed by the petitioners. Against that, the present revision is filed. 3. The learned counsel appearing for the petitioners submitted that the executing Court has power under Order 21 Rule 26 of CPC to stay of the decree for reasonable time on sufficient cause, being shown and the executing Court can also impose condition as well as granting stay. The petitioners filed Second Appeal and has furnished the Second Appeal SR number and has given the sufficient reason for stay of the decree for reasonable time. But, the learned Trial Judge did not properly consider the provision under Order 21 Rule 26 CPC and erred in dismissing the application and therefore, prayed for allowing the Civil Revision Petition. 4. The petitioners filed Second Appeal and has furnished the Second Appeal SR number and has given the sufficient reason for stay of the decree for reasonable time. But, the learned Trial Judge did not properly consider the provision under Order 21 Rule 26 CPC and erred in dismissing the application and therefore, prayed for allowing the Civil Revision Petition. 4. The learned counsel for the petitioners has relied on the following Judgment reported in 1993 (1) LW 331 (S.V.M. Nagavairavasundaram v. I.S. Bageerathan and others), relevant para 22 reads as follows:- "22. A decree-holder shall be too eager to reap the fruits of the decree and he shall leave no stone unturned to achieve his object of getting the decree satisfied. Any judgment or decree even if appealable further is final subject to appeal or revision and since there is always a chance of the appellate or revisional court taking a difference view than the view taken by the Court passing the decree, it would be reasonable to postpone the execution for a reasonable time to enable the judgment - debtor to apply to the appellate Court/revisional Court for a stay of the execution proceedings. Rules 5(2) of Order 41 Rule 26 of Order 21 aforequoted in the Code of Civil Procedure are such provisions which provide forums to the judgment -debtor for seeking a stay of the execution of the decree for a reasonable time to enable him to apply to the appellate Court/revisional Court for a stay of the execution of the decree. He, of course has to show sufficient cause and once such cause is show, the Court to which the decree is sent for execution or the Court that passed the decree shall be obliged to stay for a reasonable time the execution proceedings." As per Order 21 Rule 26 of CPC, the executing Court has power to stay the 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, on sufficient reason shown by the Judgment Debtor. 5. In the present case, the learned counsel for the petitioners stated that petitioners have filed Second Appeal before this Court and furnished the Second Appeal SR number before the learned Trial Judge. 5. In the present case, the learned counsel for the petitioners stated that petitioners have filed Second Appeal before this Court and furnished the Second Appeal SR number before the learned Trial Judge. The learned Trial Judge considered the fact that the Second Appeal filed by the petitioners has not been taken on file and dismissed the application. He further stated that the Second Appeal filed by the petitioners was returned for rectifying some defects and the same was not represented in time and again with condone delay petition the second appeal was represented. 6. I have heard the arguments of the learned counsel for the petitioner and perused the materials available on record. 7. The learned counsel for petitioners contended that Second Appeal had been filed in this Court and has given SR number. But, the petitioners have not taken effective steps to get the Second Appeal numbered and obtaining stay of decree. The petitioners have not shown sufficient reason for stay of Execution Proceedings. The petitioners even now is not diligent enough to pursue the Second Appeal. 8. The learned Judge considered all the materials on record in proper perspective and has given valid and cogent reasons for dismissing the Interlocutory Application. Further the learned Judge has exercised his power conferred on him in proper and there is no irregularity or illegality warranting interference by this Court. In the result, the Civil revision petition is dismissed confirming the impugned order of the learned Principal District Munsif Court, Sankarankovil in E.A. No. 171 of 2015 in E.P. No. 30 of 2013 in O.S. No. 117 of 2012, dated 14.12.2015. No costs. Consequently, connected Miscellaneous Petition is closed.