LAWS(KAR)-2012-9-126

K MANJULA Vs. GANGANDEEP SINGH

Decided On September 12, 2012
K Manjula Appellant
V/S
Gangandeep Singh Respondents

JUDGEMENT

(1.) THE petition coming on for Orders, as regards issuance of notice to the respondent, the complaint of the learned counsel for the petitioner is that in spite of his best efforts, the respondent is dodging the service of notice and that permission was granted to serve notice of this petition on the counsel appearing for the respondent before the Executing Court, where proceedings are pending. The Counsel for the respondent, however, has refused service.

(2.) THERE was an order of eviction passed under Section 27 (2)(r) of the Karnataka Rent Act, 1999 and the same having been affirmed by this Court in revision, challenging the order of eviction, the same is sought to be executed. The execution petition was filed on 29.3.2012. The Executing Court by its order dated 4.7.2012 has, on the basis of a memo filed by the respondent, to the effect that a Special Leave Petition has been filed against the order passed in revision, in SLP No.10833-834/2012, has opined that notwithstanding that there is no order of stay granted by the Apex Court in the Special Leave Petition, has deemed it just and proper not to issue any delivery warrant, as long as, the Special Leave Petition is pending before the Supreme Court. It is that order, which is sought to be questioned in the present petition.

(3.) IN the above circumstances, this Court does deem it fit to issue an appropriate direction. As seen from Order XXI Rule 26 of the Code of Civil Procedure, 1908, a Court may stay execution of a decree upon sufficient cause being shown for a reasonable time to enable the judgment debtor to apply to the Court by which the decree was passed or to the Court having appellate jurisdiction, in respect of the decree or the execution thereof, for an order of stay of execution. Assuming that the Executing Court has therefore passed an order staying its hand pending the Special Leave Petition, pursuant to a memo filed by the counsel for the respondent, it was not be proper for the Court to hold that it shall not pass any further orders during the pendency of the Special Leave Petition before the Apex Court. This would be unreasonable, since it is not known as to the course the Special Leave Petition may take and the time it may take for the respondent tenant to obtain any order, if at all. Hence, the process known to law ought to be enforced. The petitioner herein having obtained a decree for eviction and the same having been confirmed by this Court in its revisional jurisdiction, there is no warrant to brook any further delay in the execution of the order. The respondent tenant would have ample opportunity to seek restitution, even if he should succeed before the Apex Court in the pending Special Leave Petition and the jurisdiction of the Apex Court, which is invoked under Article 136 of the Constitution of India, is yet to be considered by the Apex Court. Therefore, it is no a privilege or a statutory right which the respondent tenant could claim in seeking stay of execution. Therefore, the writ petition is allowed. The Court below is directed to expedite the execution proceedings, in accordance with law.