Petition by judgment debtor to stay execution petition considered.

1. The revision petition is the judgment-debtor/defendant and respondents herein are the decree-holders/plaintiffs before the First Additional District Munsifs Court at Tiruchirapalli in E.A.No.778 of 1998 in E.P.No.246 of 1998 in O.S.No.3062 of 1992.

2. This revision petition is directed as against the fair and decretal order dated 8.10.1998 passed in E.A.No.778 of 1998, which is an application filed by the revision petitioner/judgment-debtor/defendant under O.21, Rule 26 as well as under Sec.151 of C.P.C., to pass a temporary order of stay of executing proceedings in E.P.No.246 of 1998 in O.S.No.3062 of 1992 on the file of First Additional District Munsifs Court at Tiruchirapalli till the disposal of the application filed to set aside the ex parte decree dated 15.4.1998. The same was resisted by the respondents/decree-holders/plaintiffs by filing a counter-statement to this stay petition in E.A.No.778 of 1998. On consideration of the rival contentions of both the parties, the learned First Additional District Munsif at Tiruchirapalli in her order dated 8.10.1998 stated that the ex parte decree was passed on 17.1.1997, and the revision petitioner/judgment-debtor/defendant filed an application to set aside the the ex parte decree on 15.4.1998 and it is in SR.stage, and there will be considerable delay in the disposal of the application to set aside the ex parte decree, and the respondent/decree-holders/plaintiffs obtained a decree for delivery of possession, and the execution of the same was being delayed by the revision petitioner/judgment-debtor/defendant thereby causing hindrance.

"TAMIL"

and the said contention of the decree-holders is acceptable, and the say petition under O.21, Rule 26 of C.P.C. and Sec.151 of C.P.C. filed by the revision petitioner/judgment-debtor/defendant filed by the revision petitioner/judgment-debtor cannot be accepted because it will affect the fruits of the decree of possession obtained by the decree-holders

"TAMIL"

and so stating the learned 1st Additional District Munsif, Tiruchirapalli dismissed the stay petition filed by the revision petitioner/judgment-debtor in E.A.No.778 of 1998 on 8.10.1998, against which the present revision petition is filed.

3. The learned counsel for the revision petitioner/judgment-debtor/defendant Mr.V.Raghavachari argued that the learned 1st Additional District Munsif ought to have seen that the revision petitioner/judgment-debtor has taken steps to get the ex parte decree set aside as early as in the month of April, 1998 along with the application under Sec.5 of the Limitation Act, and the said applications were numbered as I.A.Nos.926 of 1998 and 928 of 1998 in O.S.No.3062 of 1992 on the file of the very same 1st Additional District Munsifs Court at Tiruchirapalli and without even considering those applications numbered in I.A.Nos.926 of 1998 and 928 of 1998, the 1st Additional District Munsifs Court, as the execution court, dismissed the application filed for the stay of execution in E.A.No.778 of 1998, and such a dismissal without considering these facts is erroneous, and the respondents/decree-holders/plaintiffs have not denied the filing of the application to set aside the ex parte decree, and in such circumstances the execution court ought not to have dismissed the stay petition in E.A.No.778 of 1998, and the learned 1st Additional District Munsif ought to have seen that the petition to get the ex parte decree set aside is one of the grounds contemplated under O.21, Rule 26 of C.P.C. and so it ought to have followed the judgment reported in (1867)8 South W.R. 202 (203), and so the Revision Petition must be allowed and stay of execution proceedings for a reasonable time must be granted till the disposal of the applications filed on the original side to set aside the ex parte decree.

4. The learned Senior Counsel Mr.M.Venkatachalapathy appearing on behalf of the respondents/decree-holders/plaintiffs repudiated the above arguments and contended that no