Punjab-Haryana High Court
Narinder Kumar vs M/S N.K.Electronics on 8 December, 2008
Author: Mahesh Grover
Bench: Mahesh Grover
C.R.No. 5329 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No. 5329 of 2008 (O&M)
Date of decision : 8.12.2008
Narinder Kumar
...Petitioner
Versus
M/s N.K.Electronics
......Respondent
CORAM : HON'BLE MR. JUSTICE MAHESH GROVER
.....
Present : Mr. Mukul Aggarwal, Advocate
for the petitioner.
Mr. Sandeep Mahajan, Sr. Advocate with
Mr.Amandeep Singh, Advocate
for the respondent.
MAHESH GROVER, J.(Oral)
C.M.No.23136-CII-2008 C.M. is allowed. Case is preponed to today.
C.M.No.25045-CII-2008 C.M. is allowed. Reply is taken on record.
C.R.No. 5329 of 2008 (O&M) This revision petition is directed against the order dated 14.8.2008 by which the Court of Addl. District Judge, Ludhiana stayed the execution proceedings till the disposal of the application preferred by the respondent under Order 9 Rule 13 C.P.C. and consigned the execution application to the record room.
Learned counsel for the petitioner contended that this course was not the appropriate course to be adopted by the Court as under the provisions of Order 21 Rule 26 C.P.C. it was the Court of C.R.No. 5329 of 2008 -2- the first instance which had the jurisdiction to stay the proceedings as it was this Court which was deciding the application under Order 9 Rule 13 C.P.C. moved by the respondent. But the executing Court while directing the stay of the proceedings has committed a gross illegality.
This Court on 30.9.2008, after noticing the contentions had stayed the operation of the impugned order upon which an application was moved by the respondent praying for vacation of the stay order granted by this Court. In the application it was pointed out that the Court of the Addl. District Judge is working under two heads : (i) as the Court of first instance before whom an application under Order 9 Rule 13 C.P.C. has been moved; and (ii) in the capacity of executing Court before whom an application for stay of execution had been moved. While answering the application for stay in the execution proceedings, the impugned order was passed and in so far as the application pending before it, it has thought appropriate to pass no order on the application for the reason that it has exercised the same jurisdiction in execution proceedings.
Learned counsel for the petitioner reiterated his contention and made an exhaustive reference to Order 21 Rule 26 C.P.C. which is extracted as under :-
"Order 21 Rule 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 C.R.No. 5329 of 2008 -3- 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, 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.
(2) Where the property or person of the judgment-
debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application. (3) Power to require security from, or impose conditions upon, judgment-debtor.
Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor, the Court shall require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit."
A perusal of the above provisions of law reveals that the executing Court has the power to stay execution of a decree for a reasonable time to enable the judgment debtor to apply to the Court which had passed the decree or even to the Court of appellate jurisdiction and while passing such an order it may even put the judgment-debtor to terms.
C.R.No. 5329 of 2008 -4-
Strictly speaking, the executing Court could have granted the stay for a limited period to enable the judgment debtor i.e. the respondent to move the Court of first instance but the facts of the present case reveals that such an application already stood moved by the respondent before the Court of first instance which incidentally is the same Court which is dealing with the execution proceedings as well.
In this view of the matter, the appropriate course would have been to adopt a more comprehensive and more encompassing approach. In any eventuality, by directing that the execution shall remain stayed till the disposal of the application under Order 9 Rule 13 C.P.C. while refraining to answer the application on the original side has not prejudiced the case of the petitioner in any manner and, therefore, the contention raised by the learned counsel for the petitioner is misplaced. However, in the facts and circumstances of the case in order to avoid the defeat of the decree altogether by any delaying tactics which the respondent may resort to, it is deemed appropriate that the application under Order 9 Rule 13 C.P.C. shall be concluded within a period of 5 months. The petitioner shall conclude his entire evidence in not more than three opportunities which shall be contained within this period with similar opportunities to the respondent. The Court of Addl. District Judge may also consider putting the respondent to terms as well.
Disposed of .
8.12.2008 (MAHESH GROVER) JUDGE dss