Back
2007 (2) WLN 445 (Raj.)
Rajasthan High Court
HON’BLE MR. JUSTICE PRAKASH TATIA
Suresh Kumar & Anr.
Versus
Virendra Kumar
S.B. Civil Revision Petition No. 400/2004—Decided on 13.02.2007.
Held : Order 41 Rule 5 (1) unambiguously makes it clear that the decree becomes operative and executable from the date on which it has been passed. Unless, the decree becomes executable, there cannot arise question of seeking any stay against execution. Not only this, but there is statutory restriction upon the Court of appeal against staying the execution of decree merely by reason of appeal having been preferred to challenge the decree. Order 41 Rule 5(1) CPC, therefore, clearly suggests that the decree becomes executable forthwith unless its operation is deferred by the decree itself or by the order of the Appellate Court. Further the decree becomes executable even before limitation to challenge the decree expires which is clear from sub-rule (2) of Rule 5 of Order 41 CPC. Once the decree becomes executable, it can be stayed only in accordance with law. For this purpose, not only provision has been made for obtaining stay from the Appellate Court but even before preferring appeal, stay against execution of decree can be sought from the executing Court itself under Sub-rule (2) of Rule 5 of Order 45 CPC which provides that where an application for stay before the expiry of time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown, order execution to be stayed. Therefore, from sub-rule (2), it is clear that even before expiry of period of limitation expiry of which makes the decree final, the decree is executable and its stay can be granted by the executing Court even during the period of appeal.[Para 14]
In the said case of Ratansingh (supra), the decree was passed on 01.08.1973 by the Appellate Court which superseded the decree passed by the trial Court. The appeal was preferred against the appellate decree before the High Court. That appeal was dismissed by the High Court on the ground of delay holding the appeal barred. The Hon'ble Apex Court held that said order of rejection of appeal as barred by time is not a decree and rejection of application for condonation of delay and consequential dismissal of the appeal as time barred is not decree. In that situation, the Hon'ble Apex Court held that since no decree was passed by the High Court in second appeal, the decree of the first Appellate Court remained unaffected and the enforceability once commenced remained undisturbed for a period of 12 years therefrom. The execution process initiated by appellant long after the expiry of 12 years from 01.08.1973 is thus irretrievably barred. Therefore, in view of the law laid down by the Hon'ble Apex Court in Ratansingh's case (supra), it is also clear that the decree becomes executable from the date of decree and mere filing of appeal against the decree cannot make the decree inexecutable. The decree remains executable but its execution can be suspended by the order of the Appellate Court as per Order 41 Rule 5(1) CPC or by the executing Court as per Order 45 Rule 2 CPC. [Para 16]
2. The petitioner is aggrieved against the order dt. 21.09.2004 by which the executing Court allowed the objection petition filed by the judgment debtor under Sec. 47 CPC and held that despite the fact that the stay petition was dismissed against the execution of the decree by the Appellate Court (this Court), the decree cannot be executed because of mere pendency of the appeal. The said view was taken by the executing Court on the basis of one judgment of the Hon’ble Apex Court delivered in the case of Union of India and Ors. vs. West Coast Paper Mills Ltd. and Anr. reported in (2004) 2 SCC 747.
3. Brief facts of the case are that the plaintiff/respondent filed a suit for injunction and for cancellation of the sale deed dt. 19.07.1990 against the petitioners and Bachani Devi, Pushpa Devi and Bhoturam etc. In the suit, the petitioners filed counter claim. The respondent’s suit No. 45/1990 was dismissed by the learned Additional District Judge No. 1, Hanumangarh vide judgment and decree dt. 28.02.2003 and the counter claim filed by the petitioners was allowed and a decree was passed in favour of the petitioners against the respondent for removal of encroachment which was made by the respondent in the north side of the plot in dispute.
The decree was against present respondent Virendra Kumar and hence, he preferred regular first appeal before this Court which is registered as S.B. Civil First Appeal No. 69/2003 (Virendra Kumar vs. Suresh Kumar and Ors.). The respondent submitted stay petition also in the said first appeal before this Court but that stay petition was dismissed by this Court despite the fact that the appeal was admitted by same order dt. 23.07.2003. However, this Court directed the respondents therein (present petitioners) not to raise any construction over the property in question pending disposal of the appeal. It appears from the said order so far as decree for removal of encroachment of respondent is concerned, the stay petition was dismissed by this Court and to safeguard the interest of respondent (appellant of appeal No. 69/2003), the respondents in appeal No. 69/2003 (present petitioners) were restrained from raising any construction over the property in dispute. The present respondent submitted another stay petition in appeal No, 69/2003 which was dismissed by this Court vide order dt. 18.08.2004.
4. After dismissal of two stay petitions by High Court against the execution of decree, the respondent submitted objection petition before the executing Court seeking stay of the execution proceedings. The present petitioners filed detail reply to the objection petition and pointed out that the High Court has already dismissed the stay petition of the respondent twixe against the execution of decree. Despite this fact, the executing Court observed that in view of the judgment of the Hon’ble Apex Court in the case of West Coast Paper Mills Ltd. (supra), the appeal is continuation of suit and the decree becomes executable when the appeal is finally decided by the Appellate Court.
5. Hence, this revision petition.
6. Learned counsel for the petitioners vehemently submitted that the Court below took some portion of judgment of Hon’ble Apex Court out of the context and held that the decree cannot become executable unless the appeal is finally decided by the Appellate Court because of the reason that the appeal is continuation of suit. It is submitted that the controversy in the case of West Coast Paper Mills Ltd. (supra) was entirely different and the Hon’ble Apex Court never meant to say that all decrees against which the appeals have been preferred shall remain inexecutable till the appeal is decided by the Appellate Court nor the Hon’ble Apex Court meant that even if the stay petition is dismissed by the Appellate Court against the execution of decree, then also, the decree will remain inexecutabl
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
