K. LAKSHMIAMMAL Vs. D.S. NAGALAKSHMI

JUDGEMENT

(1.) This Civil Revision Petition has been filed by the petitioner against the order made in M.P. No. 2041 of 2008 in E.P. No. 271 of 2007 on the file of the Small Causes Court, Chennai. The petitioner filed the said miscellaneous petition under Order 21 Rule 26 of the Civil Procedure Code for staying all further proceedings in the above said execution petition. In support of the said miscellaneous petition, the petitioner has filed an affidavit before the Court below stating that the respondent filed the ejectment suit against the petitioner and got an exparte decree on 26.3.2007 by covering up the earlier round of litigation, which ended in favour of the petitioner. The petitioner also filed an application to set aside the exparte decree dated 26.3.2007. The Court below rejected the miscellaneous petition on the ground that the executing court cannot stay the proceedings on the application filed by the petitioner under Order 21 Rule 26 of CPC as it is not maintainable.

(2.) Learned counsel appearing for the petitioner would argue that the application filed by the petitioner under Order 21 Rule 26 of CPC is maintainable in view of the fact that the said application was filed parallelly along with the application filed to set aside the exparte decree dated 26.3.2007. It is further contended by the learned counsel that the respondent obtained exparte decree of ejectment by covering up the earlier round of litigation for ejectment filed against the petitioner, which ended in favour of the petitioner. Therefore, according to the learned counsel, as the petitioner is having a fair chance in getting the exparte decree set aside, the Court below ought to have entertained the application under Order 21 Rule 26 of CPC and stayed the proceedings.

(3.) Per contra, learned counsel appearing for the respondent contended that the application filed under Order 21 Rule 26 CPC can be entertained by the executing Court, only to enable the judgment debtor to apply to the 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 and not otherwise.