Ker HC | [Or. 41 R. 5] Power of execution court to stay the execution is only upto to the stage of filing appeal; Petition allowed

Kerala High Court: B. Sudheendra Kumar, J., allowing the present petition observed, “Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court.”

Petitioner is a decree-holder, who filed praying for issuing a direction to the Station House Officer concerned, to protect the possession of the petitioner over the schedule property and also for taking prosecution for the violation of the decree. Court issued two orders which were under consideration before the instant Court.

With respect to the first order dismissing the application stating that if the order is violated, the petitioner can approach the court by filing proper application, it was observed, “It appears that the court below did not consider as to whether the decree was already violated and as to whether the police assistance sought for by the decree-holder had to be granted or not, in accordance with law. Since the court below did not consider the said aspects, Ext.P8 is not sustainable.” Addressing the second order, it was remarked, “As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.”

Allowing the present petition, Court clarified the applicability of Order 41 Code of Civil Procedure, 1908 and further quashed the challenged orders.[Syamala v. Thapodhanan, 2020 SCC OnLine Ker 8401, decided on 22-01-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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