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2018 DIGILAW 83 (GAU)

Abdul Muhit Barbhuiya v. Dukar Khasia

2018-01-17

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. N. Dhar, learned counsel for the petitioners. Though the petition is styled as an application under Section 115 CPC read with Article 227 of the Constitution of India, Mr. Dhar submits that this application may be treated as an application under Article 227 of the Constitution of India. 2. This petition is directed against the order dated 30.11.2017 passed by the learned Munsiff No. 2, Hailakandi in Title Execution Case No. 9/2017 whereby the learned trial court rejected the Petition No. 148/18 praying for staying the execution case. It is stated in the said petition that the judgment-debtors (petitioners) had filed IA(C) No. 3413/2017 against the judgment and decree passed in Title Suit No. 73/2010 before this Court and therefore, it is necessary to stay the execution proceeding till the disposal of the aforesaid case. 3. Annexure 6 to the present petition goes to show that the said petition was filed on 21.9.2017. 4. IA(C) No. 3413/2017 is an application filed for condonation of delay in preferring the connected CRP bearing serial No. 30567. 5. Mr. Dhar submits that as the civil revision petition is accompanied by an application for condonation of delay, it was necessary for the judgment-debtors (petitioners) to file the aforesaid petition. The learned executing court failed to consider the provision contained under Order 21 Rule 26 CPC and thereby failed to exercise the jurisdiction vested on it by law, he submits. 6. It is to be noted that the learned executing court rejected the said petition on the ground that no stay order was passed by this Court and observed that the execution proceeding would take its own course. 7. Materials on record go to show that TS No. 73/2010 was a suit under Section 6 of the Specific Relief Act, 1963 which was decreed by judgment and order dated 24.8.2012. An appeal being TA No. 38/2012 was filed by the defendants which was allowed by judgment and order dated 18.7.2014 remanding the suit for fresh decision. Thereafter, again the suit was decreed by judgment and order dated 22.9.2016 and the appeal preferred by the petitioners was dismissed by the Civil Judge, Hailakandi by judgment and order dated 29.3.2017. 8. An appeal being TA No. 38/2012 was filed by the defendants which was allowed by judgment and order dated 18.7.2014 remanding the suit for fresh decision. Thereafter, again the suit was decreed by judgment and order dated 22.9.2016 and the appeal preferred by the petitioners was dismissed by the Civil Judge, Hailakandi by judgment and order dated 29.3.2017. 8. Against the judgment and decree dated 29.3.2017, a second appeal was preferred by the petitioners which was allowed to be withdrawn on 30.8.2017 with liberty to file civil revision petition. 9. Admittedly, before filing the petition before the executing court, the petitioners had already filed revision petition before this court along with a petition for condonation of delay. 10. Order 21 Rule 26 CPC provides that the court to which a decree had 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 execution, 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. 11. The provision of Order 21 Rule 26 CPC makes it clear that the court to which a decree had been sent for execution can stay the execution of the decree only upon sufficient cause being shown, that too, only for a reasonable period, to enable the judgment-debtor to apply to the appropriate court for an order to stay execution or to stay any other order relating to the decree or execution. In the instant case, the decree was not sent to any other court for execution. 12. When the judgment-debtors had approached the High Court, they did not obtain any order of stay of the execution proceeding. 13. When a higher court is already approached, one of the conditions precedent for exercise of power under Order 21 Rule 26 CPC, namely, to enable the judgment-debtor to apply to any court having appellate jurisdiction, does not exist. 12. When the judgment-debtors had approached the High Court, they did not obtain any order of stay of the execution proceeding. 13. When a higher court is already approached, one of the conditions precedent for exercise of power under Order 21 Rule 26 CPC, namely, to enable the judgment-debtor to apply to any court having appellate jurisdiction, does not exist. That apart, when the higher court is already in seisin of the matter, it is for that court to decide whether execution of the decree is required to be stayed or not. If the higher court had not granted any stay or if the judgment-debtor had not applied for a stay of execution of the decree though the decree is called into question, the fact situation will not constitute "sufficient cause", even otherwise, to enable the court to exercise power under Order 21 Rule 26 CPC. 14. In that view of the matter, the learned executing court did not commit any material irregularity and it duly exercised the jurisdiction vested on it and therefore, there is no merit in this petition. Accordingly, the petition is dismissed.