Jonia vs A.Michael Antony
2021 Latest Caselaw 4620 Mad

                                                                        C.R.P.(MD)No.693 of 2014(NPD)



                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED :23.02.2021

                                                       CORAM

                              THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                       C.R.P.(MD)No.693 of 2014(NPD) and
                                              M.P(MD) No.1 of 2014

                      Jonia                                                     Petitioner
                                                          Vs.

                      A.Michael Antony                                          Respondent
                      Prayer: Civil Revision Petition is filed under Article 227 of Constitution
                      of India, to set aside the fair order and decreetal order passed in I.A.No.
                      112 of 2014 in O.S.No.106 of 2011, on the file of II Additional
                      Subordinate Judge, Nagercoil, dated 25.02.2014.


                                         For Petitioner     : Mr.C.Sankar Prakash
                                         For Respondent     : Mr.S.P.Maharajan

                                                     ORDER

This Revision has been filed against an order dismissing the

application in I.A.No.112 of 2014, filed under Order 21 Rule 26(1) of

Civil Procedure Code, seeking stay of execution of the decree on the

ground that the application for condonation of delay in seeking to set

aside the exparte decree in I.A.No.109 of 2014 is pending.

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2.The petitioner suffered an exparte decree for specific

performance on 20.12.2011, in O.S.No.106 of 2011. The said decree was

put in execution in E.P.No.54 of 2012. An exparte order came to be

passed in the said Execution Proceedings on 13.07.2012. Thereafter, the

respondent filed an application in E.A.No.442 of 2013, seeking delivery

of possession, after the execution of the Sale Deed. There also, the

judgment debtor remained absent and an exparte order came to be

passed. Eventually, the petitioner filed I.A.No.109 of 2014, seeking to

condone the delay of 684 days, in filing an application to set aside the

exparte decree, along with the instant application in I.A.No.112 of 2014.

The learned trial Judge dismissed I.A.No.112 of 2014, on the ground that

it is not maintainable. It is stated that I.A.No109 of 2014 is still pending.

The rejection of I.A.No.112 of 2014 is under challenge in this Revision.

3.I have heard Mr.C.Sankar Prakash, the learned counsel

appearing for the petitioner and Mr.S.P.Maharajan, the learned counsel

appearing for the respondent.

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4. The very application in I.A.No.112 of 2014 is

misconceived. The Executing Court does not have the power to stay the

proceedings in execution, except in cases that come within Order 21

Rule 26(1) of Civil Procedure Code. Order 21 Rule 26(1) of Civil

Procedure Code reads as follows:-

26.When Court may stay execution:-(1) The Court to which a decree has 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.

5.A reading of the above provision clearly demonstrates that

where there is a transfer of decree to another Court for execution and the

transferee Court is empowered to stay the execution in order to enable

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the judgment debtor to get certain order from the transferor Court or the

Appellate Court. Therefore, stay by Executing Court, where there is no

transfer of decree for execution to another Court will not fall within

Order 21 Rule 26(1) of Civil Procedure Code. The only provision that

enables the Court that passing the decree to stay execution is under

Order 41 Rule 5(2) of Civil Procedure Code. Order 41 Rule 5(2) Civil

Procedure Code reads as follows:-

5(2).Stay by Court which passed the decree:- Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

It is clear from the above that the Court which passed a Decree on the

original side can grant a stay of execution of the decree only on an

application being filed before it, seeking stay of execution, before expiry

of the limitation for filing an Appeal against the Decree.

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6.Admittedly, an exparte decree was passed on 25.06.2012

and no application was filed within 30 days, namely the period of

limitation for filing the Appeal. Order 41 Rule 5(2) cannot also be

invoked by the petitioner. I therefore find no error in the order of the trial

Court in dismissing the application for stay. It is stated that I.A.No.109

of 2014 filed to condone the delay in setting aside the exparte decree is

pending even as of today on the ground that it has been stayed by this

Court in this Revision. Actually, the stay granted by this Court in this

Revision is only for further proceedings in execution, namely E.A.No.

442 of 2013. There was no stay of proceedings on the original side,

namely in I.A.No.109 of 2014.

7.Alarmed by the fact that I.A.No.109 of 2014, which is

filed to condone the delay of 684 days is kept pending for more than six

years. I had called for the report from the learned Additional Subordinate

Judge, Nagercoil. The learned Additional Subordinate Judge has sent a

report stating that the proceedings in I.A.No.109 of 2014 are being

adjourned on the ground that they have been stayed by this Court in the

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above Civil Revision Petition. This is very unfortunate. It is clear that

neither the counsel appearing for the petitioner nor the Court had applied

their mind to the stay order granted by this Court. These kind of

mechanical adjournments on the ground that proceedings are stayed by

this Court should be avoided in future.

8.With the above observations, this Civil Revision Petition

is dismissed. No costs. Consequently, connected Miscellaneous Petition

is closed.

23.02.2021

Index : Yes/No Internet: Yes/No vrn

To

The II Additional Subordinate Judge, Nagercoil

http://www.judis.nic.in C.R.P.(MD)No.693 of 2014(NPD)

R.SUBRAMANIAN,. J.

vrn

Order made in C.R.P.(MD)No.693 of 2014(NPD) and M.P(MD) No.1 of 2014

23.02.2021

http://www.judis.nic.in