Ratio
The power vested on the executing court under Order 21 Rule 26 CPC is to be exercised only for a reasonable time and that too for the purpose of enabling the judgment debtor to apply before the trial Court or the appellate Court seeking for stay of the execution proceedings.

1. This Civil Revision Petition has been filed by the petitioner against the order made in M.P.No. 2041 of 2008 in E.P.No.271 of 2007 on the file of the Small Causes Court, Chennai.

2. The petitioner filed the said miscellaneous petition under Order 21 Rule 26 of the Civil Procedure Code for staying all further proceedings in the above said execution petition.

In support of the said miscellaneous petition, the petitioner has filed an affidavit before the Court below stating that the respondent filed the ejectment suit against the petitioner and got an exparte decree on 26.3.2007 by covering up the earlier round of litigation, which ended in favour of the petitioner. The petitioner also filed an application to set aside the exparte decree dated 26.3.2007. The Court below rejected the miscellaneous petition on the ground that the executing court cannot stay the proceedings on the application filed by the petitioner under Order 21 Rule 26 of CPC as it is not maintainable.

3. Learned counsel appearing for the petitioner would argue that the application filed by the petitioner under Order 21 Rule 26 of CPC is maintainable in view of the fact that the said application was filed parallelly along with the application filed to set aside the exparte decree dated 26.3.2007. It is further contended by the learned counsel that the respondent obtained exparte decree of ejectment by covering up the earlier round of litigation for ejectment filed against the petitioner, which ended in favour of the petitioner. Therefore, according to the learned counsel, as the petitioner is having a fair chance in getting the exparte decree set aside , the Court below ought to have entertained the application under Order 21 Rule 26 of CPC and stayed the proceedings.

4. Per contra, learned counsel appearing for the respondent contended that the application filed under Order 21 Rule 26 CPC can be entertained by the executing Court, only to enable the judgment debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction in respect of the decree or execution thereof for an order to stay execution and not otherwise.

5. Thus, according to the learned counsel appearing for the respondent the executing Court can exercise power under Order 21 Rule 26 of CPC only when the judgment debtor is making attempt to apply before the court by which the decree was passed or to any court which has got appellate jurisdiction seeking for stay of the execution proceedings. He further contended that though the petitioner is said to have filed an application to set aside the exparte decree, she has not obtained any stay in the said proceedings. Without approaching the trial Court, which has passed the decree or by filing any appeal as against such decree and seeking for stay of the same, the application filed by the petitioner under Order 21 Rule 26 of CPC before the executing court is not maintainable. Learned counsel appearing for the respondent also relied on the judgment in Kum.R.Komala Vs. Mohammed Iqbal (AIR 1999 Karnataka 337) in support of his contention.

6. Heard the learned counsels appearing for the respective parties.

7. In this case, admittedly, the petitioner has not sought for any stay so far, before the trial Court or has not filed any appeal before the appellate court as against the judgment and decree passed against her on 26.3.2007 and has not sought for stay of the execution proceedings. While that being the position, the petitioner cannot approach the executing court by filing an application under Order 21 Rule 26 CPC seeking for stay of the execution proceedings without satisfying the requirements as contemplated under Order 21 Rule 26 (1) CPC which reads as follows:-

26. When Court may stay execution:-(1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the C