[Cites 2, Cited by 0]
Madhya Pradesh High Court
Kailash vs Smt. Sunita Jatav on 5 January, 2026
NEUTRAL CITATION NO. 2025:MPHC-IND:37657
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
MISC. PETITION No. 7270 of 2025
KAILASH AND OTHERS
Versus
SMT. SUNITA JATAV AND OTHERS
Appearance:
Shri Dharmendra Yadav, Advocate for the petitioners.
Heard on : 18.12.2025
Pronounced on : 05.01.2026
ORDER
The present petition under Article 227 of the Constitution of India has been
filed by the petitioners/judgement debtors, aggrieved by the order dated
03.12.2025 passed by the 9th Civil Judge, Senior Division, Indore in Execution
Case No. EXA/767/2025. By the impugned order, the Executing Court rejected
the application filed by the petitioners under Order 21 Rule 26 of CPC seeking
stay of execution of the possession warrant until receipt of the assessment reader's
report and a stay order from the Appellate Court in the pending appeal.
2. The facts, in brief, are that the respondents/decree holders filed Regular
Civil Suit No.59-A/2016 against the petitioners for specific performance and
possession, which was decreed in favour of the respondents vide judgement and
decree dated 25.03.2025. The petitioners preferred Regular Civil Appeal
No.100/2025 against the said decree before the Appellate Court, claiming
exemption from court fee on grounds of poverty. During the pendency of the
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appeal, the respondents initiated Execution Case No.EXA/767/2025 for
enforcement of the decree. The petitioners filed an application under Order 41
Rule 5 of CPC for stay of execution of the decree, but the Appellate Court kept
the same in abeyance pending the assessment reader's report on court fee and did
not grant any interim stay.
3. In the absence of a stay from the Appellate Court, the petitioners
approached the Executing Court with an application under Order 21 Rule 26 of
CPC for non-execution of the possession warrant until the Appellate Court passes
orders on their stay application. The Executing Court rejected the said application
vide impugned order, holding that there was no sufficient cause to stay the
execution, that the Executing Court has limited jurisdiction under Order 21 Rule
26 of CPC, and that no stay had been granted by the Appellate Court.
4. Learned counsel for the petitioners submits that the Executing Court
took a hyper-technical view and erred in rejecting the application. He contends
that the petitioners are poor, have no means of livelihood, and the appeal has been
filed with a plea for exemption from court fee. The Executing Court ought to have
granted a reasonable time under Order 21 Rule 26 of CPC to enable the
petitioners to pursue their stay application before the Appellate Court, especially
considering their financial constraints and the pendency of the appeal.
5. I have heard counsel for the petitioners and perused the record,
including the impugned order and relevant provisions of the CPC.
6. Order 21 Rule 26 of CPC provides as under :-
"(1) The Court to which the decree is sent for execution may, on
sufficient cause being shown, stay the execution of such decree for a
reasonable time to enable the judgment-debtor to apply to the Court
which passed the decree or to any Court having appellate jurisdiction
in respect of the decree or its execution for an order staying the
execution...
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(2) Pending the result of such application, where the property or person
of the judgment-debtor has been seized under execution, the Court
which issued the execution may make an order for the restitution or
discharge of such person.
(3) Before making an order to stay execution... the Court shall require
such security from, or impose such conditions upon, the judgment-
debtor as it thinks fit."
7. The provision under Order 21 Rule 26 of CPC is intended to afford a
limited respite to the judgement debtor by granting a reasonable time to approach
the appropriate Court (decreeing Court or Appellate Court) for a stay. However,
this power is discretionary and available only upon showing sufficient cause. It is
not a substitute for obtaining a stay from the Appellate Court under Order 41 Rule
5 of CPC, which empowers the Appellate Court to stay execution on sufficient
cause being shown, subject to conditions like security or deposit. Mere filing of
an appeal does not automatically operate as a stay, as explicitly provided in Order
41 Rule 5(1) of CPC.
8. In the present case, the decree was not sent to a transferee Court for
execution; the execution is before the same Court that passed the decree. The
Executing Court has correctly noted that its jurisdiction to stay execution under
Order 21 Rule 26 of CPC is limited, and it cannot indefinitely postpone execution
in the absence of a stay from the Appellate Court. The petitioners have not shown
any special circumstances warranting interference, such as attachment of property
or seizure, which would invoke sub-rule (2). The mere pendency of the appeal and
delay in the reader's report do not constitute sufficient cause for the Executing
Court to stay the warrant, especially when the Appellate Court has not exercised
its power under Order 41 Rule 5 of CPC.
9. The Executing Court has applied the correct legal principles. The
rejection of the application under Order 21 Rule 26 of CPC does not suffer from
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any jurisdictional error, illegality, or perversity warranting interference under
Article 227 of the Constitution. Supervisory jurisdiction under Article 227 is not
to be exercised to re-appreciate evidence or substitute the view of the Executing
Court unless there is a manifest error or failure of justice.
10. Consequently, no interference is called for. The impugned order dated
03.12.2025 passed by the Executing Court is upheld. The petition is accordingly
dismissed. No order as to costs.
(ALOK AWASTHI)
JUDGE
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