IN THE HIGH COURT OF JHARKHAND AT RANCHI ----- Tripati Lakhan @ Tripti Lakshman v. Ashok Kumar Gupta
Case Details
WP(C) No. 3346 of 2019 IN THE HIGH COURT OF JHARKHAND AT RANCHI ----- Tripati Lakhan @ Tripti Lakshman … Petitioner Versus Ashok Kumar Gupta … Respondent. ----
Legal Reasoning
CORAM : SRI ANANDA SEN, J. ---- For the Petitioner(s) : Mr. Rohit Roy, Advocate. For the respondent(s) : M/s Indrajit Sinha and Prerna Jhunjhunwala, Advocates ---- 5/27.06.2023: Heard the counsel for the parties. 2. The petitioner herein is the Decree Holder of the decree passed in Partition Suit No. 01/1984, which was decreed by the learned Sub-ordinate Judge at Chaibasa. Against the said decree no appeal was filed by any of the parties. The decree was put in execution in Execution Case No. 20 of 2016 in which respondent preferred an application which was numbered Civil Misc. Application No. 49/2018. Be it noted that the respondent is a stranger to the original partition suit. The said Misc. case was filed under Order XXI Rule 97 CPC, which was dismissed. Against the said dismissal, Civil Appeal No. 14/18 was filed before the Principal District Judge, which was also dismissed. Second Appeal being S.A. No. 88/19 thereafter has been filed before this High Court , which is admitted and is pending. In the said Second Appeal, the respondent has also filed an application numbered as I.A. No. 3805/19 under Order XLI Rule 5 CPC praying to stay the execution case. 3. During pendency of the Second Appeal, the opposite party, who is the appellant in Second Appeal, in Execution Case No. 20/2016 filed an application for stay of the execution proceeding. After hearing the parties, the Executing Court allowed the said application and stayed the execution proceeding till further orders, meaning thereby the stay is for an indefinite period. 4. Aggrieved by the aforesaid order, the decree- holder has approached this Court by filing this petition under Article 227 of the Constitution of India. 5. Learned counsel Mr. Rohit Roy submits that though in terms of Order XXI Rule 26 C.P.C the Executing Court has got power to stay the execution proceeding but not for an indefinite period. If Order XXI Rule 26 is perused, as per him, the stay can be for limited period for a particular purpose and only for the filing an appeal and before the Appellate Court. He submits that 2. the petitioner, since is enjoying stay, the petition under Order XLI Rule 5 CPC is not being moved by them. In this case, since the appeal and the stay petition have already been filed before the Appellate Court, there is no necessity to continue the stay of the proceeding, which has been passed by the Executing Court. 6. Learned counsel for the opposite parties, Mr. Indrajit Sinha submits that the Second Appeal has already been admitted thus in the meantime if the decree is executed, the entire Second Appeal will be frustrated. He further submits that if the opposite party is dispossessed there would be multiplicity of the proceeding, thus the stay should be continued. 7. The question, which falls for consideration is as to whether the Executing Court can stay the execution case for an indefinite period. No doubt, the Executing Court has jurisdiction to stay the execution proceeding, which power is derived from Order XXI Rule 26 of the CPC. For better appreciation, it is necessary to quote the aforesaid provision. “26. When Court may stay execution.—(1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, 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 the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto. (2) Where the property or person of the judgment-debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application. (3) Power to require security from, or impose conditions upon, judgment-debtor.—Before making an order to stay execution, or for the restitution of property or the discharge of the judgment debtor, [the Court shall require such security from, or impose such condition upon, the judgment-debtor as it thinks fit.” 8. From perusal of the aforesaid provision of law, it is clear that the Executing Court has power to stay the execution proceeding, but it is not for an indefinite period. The time should be reasonable and the purpose is to enable the judgment debtor to apply to the Court by which the decree was passed or to any Court having the appellate jurisdiction in respect of decree or the execution thereof for an order of stay of execution or for any other order relating to the decree or execution. This means that the stay should be granted only for a 3. limited period to enable the aggrieved party to the proceeding to approach the Appellate Court and make an application for stay or make such prayer before the Court/Appellate Court in respect of the decree. 9. When I go through the impugned order dated 28.5.2019, I find that the Civil Judge, Sr. Division-I, Chaibasa has stayed the entire execution proceeding for an indefinite period, which is impermissible. 10. In this case, admittedly, Second Appeal has already been filed and in the Second Appeal an application under Order XLI Rule 5 CPC has also been filed. Thus the purpose for which stay can be granted by the Executing Court in terms of order XXI Rule 26 has already been served. Now it is for the opposite parties to pursue the petition under Order XLI Rule 5 CPC before the Second Appellate Court. 11. Thus, in view of what has been held above, as the purpose of stay of execution granted in terms of Order XXI Rule 26 CPC has already been served, the stay cannot be allowed to continue. Thus, order dated 28.5.2019 passed in Execution Case No. 20/2016 is set aside. 12. 13. Accordingly, this petition stands allowed. Let copy of this order be handed over to the counsel for the parties for doing the needful. Anu/Cp2. (ANANDA SEN, J.)