Saturday, 30 March 2019

Whether O 21 R 26 of CPC is applicable if decree is executed by court which passed decree?

The contention of the learned Counsel for the revision petitioner that in view of Rule 26 of Order 21 CPC revision petitioner is entitled to seek stay of execution proceedings till he obtains orders in the petition filed under Rule 13 of Order 9 CPC. Rule 26 of Order 21 CPC relates to the power of the Court to which the decree has been sent for execution, staying the execution 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 execution thereof for an order to stay execution. Section 39 CPC relates to transfer of decree for execution to another Court. Therefore, it is clear that Rule 26 of Order 21 CPC does not apply to cases where the decree is being executed by the same Court which passed the decree. In this case since the Court which passed the decree is the same as the executing Court, question of the executing Court granting stay of execution to enable the revision petitioner obtaining stay from the Court which passed the decree does not arise.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

CRP No. 2904 of 2006

Decided On: 10.10.2006

 Malladi Ravishankar Vs. Anadaraju Chits Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:
C.Y. Somayajulu, J.


Citation: 2007 ALD(3)229,2007ALT(3) 595



1. First respondent obtained a money decree against the revision petitioner and respondents 2 to 4 and filed E.P., for attachment of the salary of the revision petitioner. Revision petitioner filed his counter contending that he filed a petition to set aside the ex parte decree with a petition to condone delay, and so the E.P. has to be stayed until orders are passed in the petition filed by him under Section 5 of the Limitation Act, 1963. Rejecting the contention of the revision petitioner the executing Court posted the E.P. for further steps. Hence this revision.

2. The contention of the learned Counsel for the revision petitioner that in view of Rule 26 of Order 21 CPC revision petitioner is entitled to seek stay of execution proceedings till he obtains orders in the petition filed under Rule 13 of Order 9 CPC. Rule 26 of Order 21 CPC relates to the power of the Court to which the decree has been sent for execution, staying the execution 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 execution thereof for an order to stay execution. Section 39 CPC relates to transfer of decree for execution to another Court. Therefore, it is clear that Rule 26 of Order 21 CPC does not apply to cases where the decree is being executed by the same Court which passed the decree. In this case since the Court which passed the decree is the same as the executing Court, question of the executing Court granting stay of execution to enable the revision petitioner obtaining stay from the Court which passed the decree does not arise.

3. Since it is the Court that passed the decree or the Court to which an appeal lies against that decree, that can order stay of execution, revision petitioner, if he wanted to obtain any order of stay of execution, ought to have taken steps on the original side for stay of execution. He cannot oppose the execution petition on the ground that he filed a petition for setting aside the ex parte decree with a petition to condone delay.

4. The other contention of the learned Counsel for the revision petitioner is that since revision petitioner is a surety, but not the principal debtor, the decree holder cannot proceed against him without exhausting his remedies against the principal debtor, also has no force in view of Section 132 of the Contract Act. Since the decree obtained by the respondent against the revision petitioner and others is a joint and several decree, respondent is at liberty to proceed against any of them, at his choice.

5. So, I find no merits in this revision and hence the revision is dismissed with costs.


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