EMBASSY HOTELSP LTD Vs. BENJAMIN PROPRIETOR

JUDGEMENT

(1.) THIS revision has been directed against the order passed in E.A.No.1075 of 2007 in E.P.No.1 of 2007 in O.S.No1538 of 1980 on the file of the Court of II Additional Subordinate Judge, Coimbatore. The said application was filed under Order 21 Rule 26 r/w Section 151 CPC to stay the execution of the decree passed in a suit for specific performance of contract. The learned Executing Court had dismissed E.A.No.1075 of 2007 on the ground that the applicant had already moved the Honourable Apex Court in second appeal for grant of stay in which the Honourable Apex Court have passed a conditional order directing the applicant in E.A.No.1075 of 2007/Judgment debtor/11th defendant in O.S.No.1538 of 1980 to deposit a sum of Rs.2.5 Lakhs every month from 3.9.2004 and to continue his possession over the petition schedule property in E.P.No.1 of 2007 which is the subject matter in O.S.No.1538 of 1980. But the revision petitioner/applicant in E.A.No.1075 of 2007 has not complied with the orders of the Honourable Apex Court in petition for Special Leave to appeal (Civil) No.24707 of 2002 dated 3.9.2004. Since the revision petitioner herein had failed to comply with the conditional order passed by the Honourable Apex Court, the application for stay was dismissed by the Honourable Apex Court on 16.12.2005. After the dismissal of the stay application by the Honourable Apex Court, the revision petitioner had moved the executing Court by way of filing of E.A.No.1075 of 2007 under Order 21 Rule 26 CPC to stay the execution petition in E.P.No.1 of 2007 till the disposal of the Civil Appeal No.5884 of 2004 pending before the Honourable Apex Court.

(2.) HEARD Mr. AR. L. Sundaresan, the learned Senior counsel appearing for the revision petitioner who would contend that even though E.A.No.1075 of 2007 was filed under wrong provision of law under Order 21 Rule 26 CPC, actually, the petition is one under Order 41 Rule 6 of CPC which reads as follows:

(3.) MR. T.R. Mani, the learned Senior Counsel appearing for the respondent while endorsing the views of the learned Executing Court would contend that after approaching the Honourable Apex Court for stay and after failed to comply with the condition imposed by the Honourable Apex Court in the stay application, it is not open to the revision petitioner to move again before the Executing Court for stay. Under such circumstances, I do not find any reason to interfere with the well considered order of the learned executing Court in E.A.No.1075 of 2007 in E.P.No.1 of 2007 in O.S.No.1538 of 1980 on the file of the Court of II Additional Subordinate Judge, Coimbatore.