Back
Karnataka High Court
LYALLPUR RUBBER MILLS, BANGALORE - Appellant
Versus
TULSI INDUSTRIES, SINDHANUR, RAICHUR DISTRICT - Respondent
Decided On : 09-14-06
Writ Petition No. 236 of 2005 (GM-CPC).
Non-examination of a party to proceeding -Effect. [K. Sreedhar Rao, J]: Neither the provisions of order 18 of CPC nor the Rules of evidence insist that a party to the proceeding should necessarily be examined. Non-examination of a party is not fatal to the case. The party without examining himself can prove his case by examining any witnesses who has personal knowledge of the facts and competent to testify. The Court upon such evidence can grant relief to the party. But, if the witness examined is not competent to depose to the facts, perhaps in such a situation, the Court will draw an adverse inference and the party runs the risk of dismissal of the case for his non-examination.
Case Referred: ILR 1999 Kar. S. N. 69.
Civil Procedure Code, 1908
Non-examination of a party to proceeding -Effect. [K. Sreedhar Rao, J]: Neither the provisions of order 18 of CPC nor the Rules of evidence insist that a party to the proceeding should necessarily be examined. Non-examination of a party is not fatal to the case. The party without examining himself can prove his case by examining any witnesses who has personal knowledge of the facts and competent to testify. The Court upon such evidence can grant relief to the party. But, if the witness examined is not competent to depose to the facts, perhaps in such a situation, the Court will draw an adverse inference and the party runs the risk of dismissal of the case for his non-examination.
Case Referred: ILR 1999 Kar. S. N. 69.
Civil Procedure Code, 1908
Non-examination of a party to proceeding -Effect. [K. Sreedhar Rao, J]: Neither the provisions of order 18 of CPC nor the Rules of evidence insist that a party to the proceeding should necessarily be examined. Non-examination of a party is not fatal to the case. The party without examining himself can prove his case by examining any witnesses who has personal knowledge of the facts and competent to testify. The Court upon such evidence can grant relief to the party. But, if the witness examined is not competent to depose to the facts, perhaps in such a situation, the Court will draw an adverse inference and the party runs the risk of dismissal of the case for his non-examination.
Case Referred: ILR 1999 Kar. S. N. 69.
Civil Procedure Code, 1908
Stay of execution -Application for -Maintainability. [K. L. Manjunath, J]: In the application filed under order XXI, Rule 26 of Civil Procedure Code, the judgment debtors have clearly stated that they have already filed an appeal before the District Judge, Jallandar and they also furnished the appeal number. When they have already filed an appeal before the District Judge, Jallandar, it was for the judgment debtors to request the District Judge, Jallandar to grant the stay of operation of judgment and decree of the trial Court. Without doing so, they filed an application under Order XXI, Rule 26 of Civil Procedure Code before the executing Court. Therefore, the said application was not maintainable. Even otherwise, considering the provisions of Order XXI, Rule 26 of Civil Procedure Code, the executing Court should have granted an order of stay only for a reasonable time to enable the respondents herein to get an order of stay from the Appellate Court.
Civil Procedure Code, 1908 -Stay of proceedings -
Power of executing Court -Circumstances in which it can exercise its power. [K. L. Manjunath, J]: The executing Court has got power to stay the proceedings for a reasonable time only under two circumstances; i) to approach the same Court which had passed the decree and to get an order of stay of operation of the decree or ii) to enable a party to file an appeal before the Appellate Court and get the stay of operation of the judgment and decree of the trial Court. Only under these two circumstances, Order XXI Rule 26 can be pressed into service.
Practice and Procedure -Execution proceedings -Execution proceedings -Stay of -Maintainability of application. [K. L. Manjunath, J]: In the application filed under Order XXI, Rule 26 of Civil Procedure Code, the judgment debtors have clearly stated that they have already filed an appeal before the District Judge, Jallandar and they also furnished the appeal number. When they have already filed an appeal before the District Judge, Jallandar, it was for the judgment debtors to request the District Judge, Jallandar to grant the stay of operation of judgment and decree of the trial Court. Without doing so, they filed an application under Order XXI, Rule 26 of Civil Procedure Code before the executing Court. Therefore, the said application was not maintainable. Even otherwise, considering the provisions of Order XXI, Rule 26 of Civil Procedure Code, the executing Court should have granted an order of stay only for a reasonable time to enable the respondents herein to get an order of stay from the Appellate Court.
Code of Civil Procedure, 1908 -Stay of proceedings -Order 21, Rule 26 -Stay of proceedings -Power of executing court -Circumstances in which it can exercise its power. [K. L. Manjunath, J]: The executing court has got power to stay the proceedings for a reasonable time only under two circumstances; i) to approach the same court which had passed the decree and to get an order of stay of operation of the decree or ii) to enable a party to file an appeal before the Appellate Court and get the stay of operation of the judgment and decree of the trial court. Only under these two circumstances, Order XXI Rule 26 can be pressed into service.
Code of Civil Procedure, 1908 -Stay of execution -Order 21, Rule 26 -Stay of execution -Application for -Maintainability. [K. L. Manjunath, J]: In the application filed under order XXI, Rule 26 of Code of Civil Procedure, the judgment debtors have clearly stated that they have already filed an appeal before the District Judge, Jallandar and they also furnished the appeal number. When they have already filed an appeal before the District Judge, Jallandar, it was for the judgment debtors to request the District Judge, Jallandar to grant the stay of operation of judgment and decree of the trial court. Without doing so, they filed an application under Order XXI, Rule 26 of Civil Procedure Code before the executing court. Therefore, the said application was not maintainable. Even otherwise, considering the provisions of Order XXI, Rule 26 of Code of Civil Procedure, the executing court should have granted an order of stay only for a reasonable time to enable the respondents herein to get an order of stay from the Appellate Court.
Code of Civil Procedure, 1908 -Object of -Order 21, Rule 26 -Object of -Stated. [K. L. Manjunath, J]: The intention of the legislature is to provide such a right to the executing court to enable the judgment debtor to file an appeal and to get an order of stay for a limited period and in such circumstances, the executing court can stay the proceedings for a reasonable time. If the judgment debtor has already filed an appeal, it is for him to get an order of stay from the Appellate Court by invoking Order XLI, Rule 5 of Civil Procedure Code. In other words, if an appeal had already been filed by the judgment debtor, an application under order XXI, Rule 26, cannot be pressed into service. But, he can request the Appellate Court to grant the stay of operation of the judgment and decree of the trial court.
Practice and Procedure -Execution proceedings -Execution proceedings -Stay of -Maintainability of application. [K. L. Manjunath, J]: In the application filed under Order XXI, Rule 26 of Code of Civil Procedure, the judgment debtors have clearly stated that they have already filed an appeal before the District Judge, Jallandar and they also furnished the appeal number. When they have already filed an appeal before the District Judge, Jallandar, it was for the judgment debtors to request the District Judge, Jallandar to grant the stay of operation of judgment and decree of the trial court. Without doing so, they filed an application under Order XXI, Rule 26 of Civil Procedure Code before the executing court. Therefore, the said application was not maintainable. Even otherwise, considering the provisions of Order XXI, Rule 26 of Code of Civil Procedure, the executing court should have granted an order of stay only for a reasonable time to enable the respondents herein to get an order of stay from the Appellate Court.
The short question that arises for consideration in this writ petition is: whether the Executing Court under Order 21, Rule 26 of the Civil Procedure Code can stay the execution proceedings till the disposal of the appeal to be preferred by a judgment-debtor subsequent to filing of the execution.
2. The facts leading to this case are; the petitioner has obtained a decree against the respondents in Civil Suit No. 71 of 1996 before the Civil Judge (Junior Division), Jallandar for recovery of Rs. 37,450/-. The respondents-defendants are the residents of Sindhanur District. The petitioner-decree-holder filed an application for transfer of the decree for execution. Accordingly, the decree was transferred to the Court of Civil Judge (Junior Division), Sindhanur, in Execution Petition No. 17 of 2003. After receipt of the notice from the Executing Court, the respondents-judgment-debtors filed an application under Order 21, Rule 26 of the Civil Procedure Code to stay the execution of the decree till the disposal of the appeal in R.C.A. No. 10 of 2004 filed before the District Judge, Jallandar contending that the judgment-debtors were not served with suit summons and that the decree-holder has obtained an ex parte decree in view of the arrest notice issued to the judgment-debtors. Having coming to know of such a decree, the judgment-debtors have already filed an appeal before the District Judge, Jallandar and therefore, the execution petition has to be stayed till the disposal of the appeal filed by them before the Court of Jallandar.
3. This application is opposed by the decree-holder on the ground that the application is filed only to protract the proceedings and that the provisions of Order 21, Rule 26 of the Civil Procedure Code are not attracted to the facts and circumstances of the case. Therefore, the petitioner requested the Court to dismiss the petition.
4. The learned Judge, who heard the matter has allowed the application of the respondents herein on 30th July, 2004 holding that there is no bar for Executing Court to stay the execution proceedings, when the Appellate Court has not granted any order of stay. Therefore, the application of the respondents was allowed subject to the respondents producing solvent surety to the extent of the decretal amount. This order is called in question in this writ petition.
5. According to the learned Counsel for the petitioner, the application filed by the respondents was not maintainable before the Trial Court, since the respondents had already filed an appeal before the District Judge, Jallandar against the judgment and decree passed by the Civil Judge (Junior Division), Jallandar. According to him, it was for the respondents to file an application under Order 41, Rule 5 of the Civil Procedure Code in the appeal filed by them before the Court of District Judge, Jallandar and to obtain an order of stay. When once an appeal is filed by them, they cannot file an application under Order 21, Rule 26 of the Civil Procedure Code. Alternatively, he contends that even if the Executing Court is of the opinion that the proceedings before it has to be stayed, the proceedings can be stayed by the Court only for a reasonable time to enable the judgment-debtor to obtain an order of stay of operation of the decree either from the Court which it had passed the decree or from the Appellate Court. According to him, the Trial Court has committed an error in granting a blanket order of stay. Therefore, he requests this Court to allow the writ petition.
6. Per contra, learned Counsel for the respondents submits that the Executing Court has got ample power to stay the proceedings when the decretal amount is secured to the petitioner. According to him, as directed by the Trial Court, the respondents herein have furnished the solvent surety to the satisfaction of the Court. Therefore, he requests this Court to dismiss the writ petition.
7. Having heard the learned Counsel for the petitioner, what is required
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
