P S JOHN Vs. LEELAMMA

JUDGEMENT

(1.) This petition is filed under S.115 of Code of Civil Procedure against the order passed by Munsiff, Mavelikkara, in EA No. 51/2008 in EP No. 149/2007 in OSNo. 284/2005. The suit was decreed on 31.7.2007 and petition was filed on 24.11.2007 for execution of the decree. Petitioner filed IANo. 51/2008 under O.21 R.26(1) of Code of Civil Procedure for stay of the execution proceedings. Executing Court dismissed the application finding that petitioner has already filed an appeal, and, therefore, it cannot be stayed.

(2.) The argument of the learned counsel appearing for the petitioner is that though an appeal was filed, it was filed out of time, and a petition was also filed under S.5 of the Limitation Act to condone the delay in filing the appeal, and notice in that application could not be served on the respondents, as they are out of India, and, therefore, an order of stay has to be granted.

(3.) On hearing the learned counsel for the petitioner, I do not find any illegality or irregularity in the order passed by the Executing Court. Sub-rule (1) of R.26 of O.21 of Code of Civil Procedure has no application on the facts of the case. It applies to a case where decree was passed by one court, and it was transferred for execution to another court. In such a case, judgment debtor is granted right to apply under sub-rule (1) to stay the execution of the decree for some period, to enable the judgment debtor to approach the Court which passed the decree or to approach the appellate court of that court for an order of stay. When the Execution petition is filed before the same court, and that too, after filing an appeal, it cannot be said that R.26(1) has to be invoked by the learned counsel. If the grievance of the petitioner is that delay petition cannot be heard as notice was not served on the respondents, petitioner is at liberty to approach the appellate court for appropriate order, serving notice on the counsel appearing for the decree holder before the Executing Court. Petition is dismissed.