ARUNKUMAR VELUCHAMY Vs. GURUMOORTHI AND ORS.

JUDGEMENT

(1.) The appellant is the petitioner in I.A. No. 158 of 2009 and appellant is the respondent in I.A. No. 89 of 2009 in A.S. No. 161 of 2008 on the file of the Sub-Court, Theni. The plaintiffs had filed a suit for permanent injunction restraining the defendant from interfering with the peaceful possession. After contest, the said suit was decreed. Aggrieved by the same, the defendant had filed A.S. No. 161 of 2008 on the file of the Sub-Court, Theni. Along with the appeal, an application in I.A. No. 158 of 2009 was filed under Order 41 Rule 5 of the Code of Civil Procedure to stay all further proceedings in the suit as already, the plaintiffs had initiated E.P. No. 4 of 2009 before the District Munsif Court, Theni.

(2.) The said application was contested by the respondents on the ground that the very application is not maintainable as the respondents/decree holder had levied execution and filed a petition under Order 21 Rule 32 of the Code of Civil Procedure for disobedience of the decree. Therefore, according to the respondents, an application filed under Order 41 Rule 5 of the Code of Civil Procedure is maintainable only for stay of the operation of the decree and the execution proceedings cannot be stopped.

(3.) The said application was dismissed by the Sub-Court, holding that the application itself is filed belatedly in the year 2009. The appeal was filed in the year 2008. Aggrieved by the same, C.R.P.NPD (MD) No. 1821 of 2010 is filed.