Pending application under Order 21 Rule 97 of CPC, the execution proceedings should not be allowed to proceed without granting stay, and the Executing Court has a duty to deal with the application at the first instance as per law and postpone the delivery.

Inveighing the order dated 07.04.2010 passed in EA No.250 of 2010 in EP No.14 of 2010 in OS No.636 of 2008, by the learned District Munsif, Namakkal, this civil revision petition is focussed.

2. Heard both sides.

3. Niggard and bereft of the details, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus:

(i) The revision petitioners herein filed the application under Order 21 Rule 97 of CPC and they also filed REA No.250 of 2010 seeking stay of the execution proceedings, pending disposal of the application under Order 21 Rule 97 of CPC in REA No.249 of 2010.

(ii) The Executing Court in the said E.A.No.250 of 2010 made endorsement as under:

Notice given to other side for R1

Notice of hg. and counter of R1

Issue notice to respt. By R2 3.6.10"

(extracted as such)

4. Being aggrieved by and dissatisfied with the same, this revision has been filed.

5. The learned counsel for the revision petitioners reiterating the grounds of revision would develop his argument to the effect that pending application under Order 21 Rule 97 of CPC, if the E.P. is allowed to be proceeded with without granting stay, then the application under Order 21 Rule 97 of CPC would become infructuous and that is not the scheme contemplated in CPC. Accordingly, he prays for suitable orders to be passed by this Court.

6. Whereupon, the learned counsel for the first respondent would submit that absolutely there is no necessity for filing this revision, as the lower Court has not passed any revisional order within the meaning of Section 115 of CPC. According to the learned counsel for the first respondent/decree holder, so far delivery has not been effected. In this factual matrix, it is clear that there is an application filed by the revision petitioners herein under Order 21 Rule 97 of CPC which is pending before the Executing Court.

7. It is a trite proposition of law that before effecting delivery once there is such an application, it is the bounden duty of the Executing Court to deal with the application at the first instance as per law and once the Executing Court is seized of the application under Order 21 Rule 97 of CPC, the delivery has to be postponed. As such, such a safeguard is contemplated in the law itself. By way of abundanti cautela this REA No.250 of 2010 was also filed and in that only notice was ordered. Wherefore, keeping in mind the above observations of this Court, the Executing Court shall process the matter as per law.

Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.