K M SADASIVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are defendants in O.S.327/97 on the file of Munsiff court, Kottayam. As against the decree petitioners filed A.S.99/2000. According to petitioners along with the appeal, application under Order XLI Rule 5 (2) of Code of Civil Procedure was filed for staying the execution of the decree and under Ext.P5 order execution of the decree was stayed. Subsequently, appeal was dismissed for default. It was restored later. Case of petitioners is that while restoring the appeal, I.A.1607/00, whereunder execution of the decree was originally stayed by Ext.P5, was not restored. Consequently, executing court is proceeding with execution petition. It is contended that even though petitioner filed applications for stay before the executing court and appellate court, no order of stay was granted. This petition is field under Article 227 of Constitution of India for a direction to the executing court to stay further proceedings in the execution petition.

(2.) Learned counsel appearing for petitioners was heard.

(3.) Ext.P5 order dated 27/6/2000 in I.A.1607/00, shows that interim stay of execution of the decree was granted in A.S.99/00. A.S.99/00 was subsequently dismissed for default on 23/1/2006. According to petitioners, it was restored on 8/8/2006. Case of petitioners is that while restoring the appeal, I.A.1607/00 was not restored. From Ext.P5 it is not possible to say what happened to I.A.1607/00, subsequent to 27/6/2000 and whether the order of interim stay granted on 27.6.2000 continued till the appeal was dismissed for default on 23/1/2006. In such circumstance, it cannot be presumed that order of stay granted under Ext.P5 was prevailing when the appeal was dismissed for default on 23/1/2006.