IMPORTANT POINT
The executing court cannot stay execution of its own decree; such authority lies with the appellate court.

JUDGMENT :

RAVI NATH TILHARI, J.

Heard Sri Ramamurty PVSA, learned counsel for the petitioner.

2. This civil revision petition under Section 115 of the Code of Civil Procedure (in short ‘CPC’) has been filed challenging the Order dated 03.05.2024 passed in E.P.No.8 of 2023 in O.S.No.161 of 2023 on the file of the Court of the Civil Judge (Senior Division), Ramachandrapuram, Dr.B.R.Ambedkar Konaseema District, erstwhile East Godavari District.

3. The petitioner is the defendant/judgment debtor.

4. The plaintiff/respondent/decree holder filed O.S.No.161 of 2013 in the Court of the Senior Civil Judge, Ramachandrapuram, Dr.B.R.Ambedkar Konaseema District, for a decree of specific performance of contract. The suit was decreed on 16.11.2016. The defendant’s appeal being A.S.No.2 of 2017 was dismissed on 11.08.2022. Challenging the Appellate decree, he filed S.A.No.270 of 2024 along with an application for condonation of delay.

5. The learned counsel for the petitioner submits that the application for condonation of delay is pending for consideration in the second appeal without any stay order.

6. The respondent/decree holder filed E.P.No.8 of 2023 for execution of the decree dated 16.11.2016. In the said case, the petitioner filed an application under Order 21 Rule 26 read with Section 151 CPC for stay of execution of the decree.

7. The said application was returned as not maintainable before the Execution Court, vide the impugned Order dated 03.05.2024. The learned senior Civil Judge’s Court directed its Office to verify the draft sale deed filed by the decree holder and nominate any Court Officer to execute the sale deed in favour of the decree holder, pursuant to the orders passed in the execution petition.

8. The learned senior Civil Judge’s Court has observed that the application under Order 21 Rule 26 CPC was not maintainable, for the reason that the Execution Court was not the Court to which the decree had been sent for execution but the decree was passed by the same Court and consequently, Order 21 Rule 26 CPC was not attracted, the application was not maintainable.

9. Another ground on which the impugned order has been passed is that the petitioner’s second appeal though pending, shall not operate as a stay to stop the execution proceedings unless there was stay in view of under Order 41 Rule 5(1) CPC.

10. Learned counsel for the petitioner submits that Order 21 Rule 26 CPC, application was maintainable and should have been decided on merits after numbering. The Court should have granted time to enable the petitioner to get stay order in pending S.A.No.270 of 2024.

11. Learned counsel for the petitioner further submitted that the Executing Court is vested with such jurisdiction, placing reliance in Order 41 Rule 5 (2) CPC. He submits that the Executing Court ought to have considered the application and have granted stay.

12. I have considered the submissions advanced and perused the material on record.

13. It is not disputed that the application under Order 21 Rule 26 CPC was filed before the Executing Court which had passed the decree. It is admitted that the Executing Court is not different from the Court which had passed the decree and it is not a case of a decree passed by one Court being sent for execution to another Court.

14. Order 21 Rule 26 CPC reads as under:

“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 judgmen