Madras High Court
K.Lakshmiammal vs D.S.Nagalakshmi on 27 July, 2012
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.07.2012 CORAM The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(NPD) No.783 of 2010 K.Lakshmiammal ... Petitioner Vs. D.S.Nagalakshmi .. Respondent Civil Revision Petition filed against the fair order and decreetal order dated 26.11.2009 made in M.P.No.2041 of 2008 in E.P.No.271 of 2007 on the file of the Registrar Court, Court of Small Causes, Chennai. For Petitioner :- Mr.V.Manohar For Respondent:- Mr.C.Jagadish ORDER
This Civil Revision Petition has been filed by the petitioner against the order made in M.P.No. 2041 of 2008 in E.P.No.271 of 2007 on the file of the Small Causes Court, Chennai.
2. The petitioner filed the said miscellaneous petition under Order 21 Rule 26 of the Civil Procedure Code for staying all further proceedings in the above said execution petition. In support of the said miscellaneous petition, the petitioner has filed an affidavit before the Court below stating that the respondent filed the ejectment suit against the petitioner and got an exparte decree on 26.3.2007 by covering up the earlier round of litigation, which ended in favour of the petitioner. The petitioner also filed an application to set aside the exparte decree dated 26.3.2007. The Court below rejected the miscellaneous petition on the ground that the executing court cannot stay the proceedings on the application filed by the petitioner under Order 21 Rule 26 of CPC as it is not maintainable.
3. Learned counsel appearing for the petitioner would argue that the application filed by the petitioner under Order 21 Rule 26 of CPC is maintainable in view of the fact that the said application was filed parallelly along with the application filed to set aside the exparte decree dated 26.3.2007. It is further contended by the learned counsel that the respondent obtained exparte decree of ejectment by covering up the earlier round of litigation for ejectment filed against the petitioner, which ended in favour of the petitioner. Therefore, according to the learned counsel, as the petitioner is having a fair chance in getting the exparte decree set aside , the Court below ought to have entertained the application under Order 21 Rule 26 of CPC and stayed the proceedings.
4. Per contra, learned counsel appearing for the respondent contended that the application filed under Order 21 Rule 26 CPC can be entertained by the executing Court, only 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 execution thereof for an order to stay execution and not otherwise.
5. Thus, according to the learned counsel appearing for the respondent the executing Court can exercise power under Order 21 Rule 26 of CPC only when the judgment debtor is making attempt to apply before the court by which the decree was passed or to any court which has got appellate jurisdiction seeking for stay of the execution proceedings. He further contended that though the petitioner is said to have filed an application to set aside the exparte decree, she has not obtained any stay in the said proceedings. Without approaching the trial Court, which has passed the decree or by filing any appeal as against such decree and seeking for stay of the same, the application filed by the petitioner under Order 21 Rule 26 of CPC before the executing court is not maintainable. Learned counsel appearing for the respondent also relied on the judgment in Kum.R.Komala Vs. Mohammed Iqbal (AIR 1999 Karnataka 337) in support of his contention.
6. Heard the learned counsels appearing for the respective parties.
7. In this case, admittedly, the petitioner has not sought for any stay so far, before the trial Court or has not filed any appeal before the appellate court as against the judgment and decree passed against her on 26.3.2007 and has not sought for stay of the execution proceedings. While that being the position, the petitioner cannot approach the executing court by filing an application under Order 21 Rule 26 CPC seeking for stay of the execution proceedings without satisfying the requirements as contemplated under Order 21 Rule 26 (1) CPC which 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.
8. From the perusal of the above provision under Order 21 Rule 26 of CPC, it could be seen that the executing Court shall stay the execution of the decree for a reasonable time upon showing sufficient cause, to enable the judgment debtor to apply for stay either before the trial Court or before the Appellate Court. Thus, the power vested on the executing court under Order 21 Rule 26 CPC is to be exercised only for a reasonable time and that too for the purpose of enabling the judgment debtor to apply before the trial Court or the appellate Court seeking for stay of the execution proceedings. It is nothing but granting a breathing time to the judgment debtor to approach the appropriate forum and seek stay of the execution. If no such application is filed by the judgment debtor, within a reasonable time, either before the the trial Court or the appellate Court, even after filing the application under Order 21 Rule 26 before the executing Court, the said Court cannot prolong such stay indefinitely as the said relief contemplated under Order 21 Rule 26 is only for a reasonable time and not for a prolonged time. Thus, if no step is taken to approach the trial Court or the appellate Court seeking for stay of the execution, the executing Court has to reject/dismiss the application on the ground that the judgment debtor has not complied with the requirement contemplated under the said provision. Applying the said principle to the facts of the present case, it is seen that though the petitioner had approached the executing court by filing the present application under Order 21 Rule 26 of CPC and obtained interim stay during the vacation time, it appears that the petitioner has not approached either the trial Court or the appellate Court seeking for stay of the execution proceedings. Consequently, she failed to satisfy the mandatory requirements under Order 21 Rule 26 CPC. Therefore, the petitioner is not entitled to seek protection under Order 21 Rule 26 and the Court below has rightly rejected the said application .
9. The decision relied on by the learned counsel for the respondent in Kum.R.Komala Vs. Mohammed Iqbal (AIR 1999 Karnataka 337) also deals with the issue and it was observed therein that Order 21 Rule 26(1) only relates to granting of limited stay of execution by the execution Court and for only a specific purpose so as to enable the judgment debtor to apply for stay order from the appellate court or from the trial Court which passed the decree . As it is not the case of the petitioner that any such application is filed or pending before the trial court or the appellate court, I find no reason to interfere with the order passed by the court below. The Civil Revision Petition is dismissed. It is open to the petitioner to work out her remedy either before the trial court or by filing an appeal before the appellate court. No costs.
27.07.2012 Index:Yes/No Internet:Yes/No krr/ To The Registrar Court, Court of Small Causes, Chennai.
K.RAVICHANDRABAABU,J.
krr/ C.R.P.(NPD) No.783 of 2010 Dated:- 27.07.2012