Telangana High Court
B. Swamy Reddy vs Komuravelli Karuna on 23 April, 2026
Author: N.Tukaramji
Bench: N.Tukaramji
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
CIVIL REVISION PETITION No.4563 OF 2025
DATE: 23.04.2026
Between :
B Swamy Reddy ... Petitioner
AND
Komuravelli Karuna and two others.
... Respondents.
O R D E R:
Mr. M. Ram Mohan Reddy, learned counsel appearing for the petitioner, was heard. Despite due service of notice, respondent Nos. 1 and 2 have chosen to remain unrepresented and have not entered appearance.
2. The present Civil Revision Petition is filed assailing the order dated 26.09.2025 passed in E.A. No. 12 of 2025 in E.P. No. 32 of 2023 arising out of O.S. No. 66 of 2007 on the file of the Additional Senior Civil Judge-cum-Additional Assistant Sessions Judge, Karimnagar. The petitioner, who is the decree holder (arrayed as defendant No.2 in the suit), is aggrieved by the order of the executing Court granting stay of execution of the decree.
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The brief facts, insofar as they are relevant for adjudication, are that the executing Court, by the impugned order, allowed the application filed by the respondents/judgment debtors and granted stay of execution of the decree passed in the counter-claim in O.S. No. 66 of 2007, pending disposal of Second Appeal No. 288 of 2024 before this Court.
3. Learned counsel for the petitioner submits that against the decree passed by the trial Court execution petition was filed in E.P. No. 32 of 2023. At that stage, the respondents/judgment debtors filed E.A. No. 12 of 2025 seeking stay of execution solely on the ground that a Second Appeal bearing No. 288 of 2024 is pending before the High Court. The executing Court, invoking Order XXI Rule 26 of the Code of Civil Procedure, 1908 (for short, "CPC"), granted stay of execution till disposal of the said appeal.
It is contended that the impugned order suffers from patent illegality and material irregularity in the exercise of jurisdiction. The executing Court failed to appreciate that the Second Appeal is accompanied by an application for condonation of delay as well as a stay petition, both of which are yet to be adjudicated by the appellate Court. In the absence of any interim order of stay granted by the High Court, the executing Court could not have interdicted the execution proceedings.
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4. It is further contended that the reliance placed on Order XXI Rule 26 CPC is wholly misconceived. The said provision is attracted only in cases where a decree is sent for execution to another Court, and not where the decree is being executed by the Court, which passed it. Therefore, the executing Court, being the Court of first instance, lacks jurisdiction to invoke the said provision. It is submitted that once an appeal is filed, the power to grant stay of execution is governed exclusively by Order XLI Rule 5 CPC and vests solely in the appellate Court.
5. It is also argued that even assuming a limited discretionary power exists, such power can be exercised only within the period prescribed for filing an appeal. In the present case, the application for stay was filed beyond the limitation period and after filing of the Second Appeal along with a delay condonation petition. Hence, the executing Court has clearly acted in excess of jurisdiction.
6. In support of the above submissions, reliance is placed on Syamala v. Thapodhanan, 2020 SCC OnLine Ker 8401, wherein it was held that once an appeal is filed, the executing Court has no jurisdiction to stay execution in the absence of a stay granted by the appellate Court. Reliance is also placed on G. Suresh Mohan v. S. Lilly, 2010 LawSuit (Mad) 4042, wherein it was held that pendency of an appeal 4 filed with delay does not justify stay of execution proceedings by the executing Court.
7. This Court has given its anxious consideration to the submissions advanced and perused the material available on record.
8. A perusal of the impugned order reveals that the decree sought to be executed pertains to a mandatory injunction directing demolition of unauthorized construction made on the eastern side of the suit schedule property for failure to leave the required setbacks. Upon non- compliance by the judgment debtors, execution proceedings were initiated in E.P. No. 32 of 2023 seeking enforcement of the decree through Court process.
9. The executing Court took note of the contention of the judgment debtors that they have preferred a Second Appeal before the High Court and that demolition of the structure during the pendency of the appeal would result in irreversible consequences, particularly if the decree is ultimately set aside.
10. While acknowledging the objection of the decree holder that no stay has been granted by the appellate Court, the executing Court proceeded to grant stay of execution on equitable considerations, observing that demolition would cause irreparable loss. 5
11. At the outset, it is a settled principle that the jurisdiction of an executing Court is circumscribed by the provisions of the CPC. The executing Court is bound to execute the decree as it stands and cannot travel beyond its terms or assume powers not expressly conferred by statute.
12. Order XXI Rule 26 CPC enables the executing Court to stay execution only in limited circumstances, primarily where the decree has been transferred for execution to another Court. In the present case, the decree is being executed by the very Court, which passed it. Therefore, invocation of Order XXI Rule 26 CPC is legally untenable and amounts to a misapplication of the provision.
13. The statutory scheme under Order XLI Rule 5 CPC clearly provides that the mere filing of an appeal does not operate as a stay of execution. A stay can be granted only upon a specific order passed by the appellate Court, subject to satisfaction of the conditions stipulated therein, including substantial loss, absence of delay, and furnishing of security.
14. In the instant case, though the judgment debtors have filed Second Appeal No. 288 of 2024 along with applications for condonation of delay and stay, no interim order has been granted by 6 the High Court. In such circumstances, the executing Court had no jurisdiction to independently grant stay of execution.
15. The legal position is well settled. In Syamala v. Thapodhanan, (supra) it was held that the executing Court cannot stay execution once the matter is seized by the appellate Court, unless specifically directed. Similarly, in G. Suresh Mohan v. S. Lilly,(supra) it was held that pendency of an appeal filed with delay does not justify suspension of execution proceedings.
16. The reasoning of the executing Court based on irreparable injury and equitable considerations, though prima facie appealing, cannot override the express statutory mandate. Such considerations fall squarely within the jurisdiction of the appellate Court under Order XLI Rule 5 CPC and not within the limited domain of the executing Court.
17. Further, the stay application having been filed beyond the period of limitation and after institution of the Second Appeal, the respondents/judgment debtors cannot seek equitable indulgence before the executing Court in the absence of a valid order from the appellate forum.
18. In view of the foregoing analysis, this Court is of the considered opinion that the impugned order suffers from jurisdictional error and material irregularity. The executing Court has exercised a power not 7 vested in it under law, thereby rendering the impugned order unsustainable.
19. Accordingly, the Civil Revision Petition is allowed. The impugned order dated 26.09.2025 in E.A. No. 12 of 2025 in E.P. No. 32 of 2023 is set aside.
Pending miscellaneous applications, if any, shall stand closed.
_______________ N.TUKARAMJI, J Date: 23.04.2026 MRKR