KAILASH Vs. SUNITA JATAV

JUDGEMENT

(1.) The present petition under Article 227 of the Constitution of India has been filed by the petitioners/judgement debtors, aggrieved by the order dtd. 3/12/2025 passed by the 9th Civil Judge, Senior Division, Indore in Execution Case No. EXA/767/2025. By the impugned order, the Executing Court rejected the application filed by the petitioners under Order 21 Rule 26 of CPC seeking stay of execution of the possession warrant until receipt of the assessment reader's report and a stay order from the Appellate Court in the pending appeal.

(2.) The facts, in brief, are that the respondents/decree holders filed Regular Civil Suit No.59-A/2016 against the petitioners for specific performance and possession, which was decreed in favour of the respondents vide judgement and decree dtd. 25/3/2025. The petitioners preferred Regular Civil Appeal No.100/2025 against the said decree before the Appellate Court, claiming exemption from court fee on grounds of poverty. During the pendency of the appeal, the respondents initiated Execution Case No.EXA/767/2025 for enforcement of the decree. The petitioners filed an application under Order 41 Rule 5 of CPC for stay of execution of the decree, but the Appellate Court kept the same in abeyance pending the assessment reader's report on court fee and did not grant any interim stay.

(3.) In the absence of a stay from the Appellate Court, the petitioners approached the Executing Court with an application under Order 21 Rule 26 of CPC for non-execution of the possession warrant until the Appellate Court passes orders on their stay application. The Executing Court rejected the said application vide impugned order, holding that there was no sufficient cause to stay the execution, that the Executing Court has limited jurisdiction under Order 21 Rule 26 of CPC, and that no stay had been granted by the Appellate Court.