Whether Trial Court Can Stay Execution of Decree Till Disposal of Appeal

 

Whether trial court can stay execution of decree till disposal of appeal?

 As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already OP(C).No.52 OF 2020 filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.

Kerala High Court

Syamala vs Thapodhanan on 22 January, 2020

Coram:  MR. JUSTICE B.SUDHEENDRA KUMAR

In this original petition, Exts.P8 and P11 are under challenge.

2. Heard.

3. The petitioner is the decree holder, who filed E.A.No.173 of 2018 in E.P.No.55 of 2018 in O.S.No.543 of 2010 praying for issuing a direction to the Station House Officer concerned to protect the possession of the petitioner over the decree schedule property and also for taking prosecution for the violation of the decree.

4. The court below passed Ext.P8 order, dismissing the application stating that if the order is violated, the petitioner can approach the court by filing OP(C).No.52 OF 2020 proper application. It appears that the court below did not consider as to whether the decree was already violated and as to whether the police assistance sought for by the decree holder had to be granted or not, in accordance with law. Since the court below did not consider the said aspects, Ext.P8 is not sustainable.

5. As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already OP(C).No.52 OF 2020 filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.

In the result, this Original Petition stands allowed, setting aside Exts.P8 and P11 and the court below is directed to pass orders afresh on E.A.No.173/2018, affording reasonable opportunity of hearing to both sides, in accordance with law, as expeditiously as possible and at any rate within one month from the date of receipt/production of a copy of this judgment.

Stay Of Execution Of Decree Pending Suit Between Decree-Holder And Judgment-Debtor Shall Be Granted Only In Exceptional And Extraordinary Cases

Stay Of Execution Of Decree Pending Suit Between Decree-Holder And Judgment-Debtor Shall Be Granted Only In Exceptional And Extraordinary Cases: Chhattisgarh HC [Read Order] Sep 22nd 2018, 15:12, by Sukriti Ashok Kini “A person should not be deprived of the fruits of his decree merely because suits of the frivolous character are instituted and litigants are out after further series of litigations” The Chhattisgarh High Court has observed that stay of execution of decree pending suit between decree-holder and judgment-debtor shall be granted only in exceptional and extraordinary cases. Order XXI Rule 29 of the Code of Civil Procedure (CPC) empowers the executing court to stay the execution of the decree until the pending suit between the judgment debtor and decree holder is decided. Justice Sanjay K Agrawal, in Sayed Nair Hasan vs. Santi Singh, observed that a decree-holder should not be deprived of the fruits of the decree except for good reasons. “A person should not be deprived of the fruits of his decree merely because suits of the frivolous character are instituted and litigants are out after further series of litigations. The decree must be allowed to be executed, and unless an extra-ordinary case is made out, no stay should be granted. Even if stay is granted, it must be on suitable terms so that the earlier decree is not stifled,” the court said. The court added that, while considering such an application, rigorous test is to be applied and the applicability of Order 21 Rule 29 of the CPC cannot be taken lightly and as a matter of right and discretion to exercise the power should be granted only in exceptional and extraordinary case made out by the judgment-debtor. In the facts of present case, the court observed: “Merely on the ground of pendency of civil suit stating the decree passed earlier is not executable, Order 21 Rule 29 of the CPC is sought to be invoked. There is no averment in the application that decree earlier granted was passed on the basis of fraud played or on the basis of misrepresentation or any other strong or exceptional ground is pleaded to stay the operation of decree granted earlier. No such extraordinary case is made out to grant stay of execution of decree.” Taking note that the decree is pending execution for past 15 years, the bench directed the executing court to execute the decree within two months. Read the Order Here