Due to non-compliance of the conditions imposed by Apex Court application for stay dismissed.

This revision has been directed against the order passed in E.A.No.1075 of 2007 in E.P.No.1 of 2007 in O.S.No1538 of 1980 on the file of the Court of II Additional Subordinate Judge, Coimbatore. The said application was filed under Order 21 Rule 26 r/w Section 151 CPC to stay the execution of the decree passed in a suit for specific performance of contract. The learned Executing Court had dismissed E.A.No.1075 of 2007 on the ground that the applicant had already moved the Honourable Apex Court in second appeal for grant of stay in which the Honourable Apex Court have passed a conditional order directing the applicant in E.A.No.1075 of 2007/Judgment debtor/11th defendant in O.S.No.1538 of 1980 to deposit a sum of Rs.2.5 Lakhs every month from 9. 2004 and to continue his possession over the petition schedule property in E.P.No.1 of 2007 which is the subject matter in O.S.No.1538 of 1980. But the revision petitioner/applicant in E.A.No.1075 of 2007 has not complied with the orders of the Honourable Apex Court in petition for Special Leave to appeal (Civil) No.24707 of 2002 dated 9. 2004. Since the revision petitioner herein had failed to comply with the conditional order passed by the Honourable Apex Court, the application for stay was dismissed by the Honourable Apex Court on 112. 2005. After the dismissal of the stay application by the Honourable Apex Court, the revision petitioner had moved the executing Court by way of filing of E.A.No.1075 of 2007 under Order 21 Rule 26 CPC to stay the execution petition in E.P.No.1 of 2007 till the disposal of the Civil Appeal No.5884 of 2004 pending before the Honourable Apex Court.

2. Heard Mr. AR. L. Sundaresan, the learned Senior counsel appearing for the revision petitioner who would contend that even though E.A.No.1075 of 2007 was filed under wrong provision of law under Order 21 Rule 26 CPC, actually, the petition is one under Order 41 Rule 6 of CPC which reads as follows:

“Security in case of order for execution of decree appealed from:-

Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.

2) Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the Judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of."

Relying on the above said provision of law, the learned Senior Counsel appearing for the revision petitioner would contend that since C.A.No.5884 of 2004 is pending against the decree and Judgment in O.S.No.1538 of 1980 before the Honourable Apex Court, the trial Court which passed the decree is competent to stay the execution of the decree till the disposal of C.A.No.5884 of 2004 under order 41 Rule 6(1) CPC, the learned Senior Counsel would also focus the attention of this Court to order 41 Rule 5 CPC which runs as follows:

"An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

Explanation: An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant,