1983 Supreme(MP) 760

IN THE HIGH COURT OF MADHYA PRADESH
S.S. Sharma, J.
Shyam Sundar Kaushal – Applicant
Versus
Surya Nath Mishra – Respondent
C.R. No. 364 of 1983 (J)
Decided On : 14-03-1983

Headnote:(1)Civil Procedure Code, 1908 – O. 9, R. 13 and O. 21, R. 26 – executing Court refusing to stay execution of eviction decree during pendency of proceedings for setting aside ex – parte decree – applicant already in occupation of another house – order proper.

       (2)Civil Procedure Code, 1908 – S. 115 – judgment – debtor participating proceedings till date stage – also protracting trial – Court has jurisdiction to reject stay application – no illegality or material irregularity committed.

        Short Note

       1. The non – applicant had obtained a decree for ejectment against the applicant. That decree was passed ex – parte. The applicant judgment – debtor has submitted an application under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code) for setting aside that decree. That application is registered as M.J.C. No. 30 of 1982 and is pending. The decree holder had also filed an application for execution of the decree that had been passed in his favour. The judgment debtor submitted an application under Order 21 Rule 26 of the Code for staying the execution of the decree. That application has been rejected by the Executing Court by the impugned order. The challenge in this revision is to that order.

       2. During the hearing, learned counsel for the non – applicant decree – holder pointed out that the applicant – judgment debtor is already in occupation of another house of his own. This fact was not disputed by the learned counsel for the applicant. However, while according to the learned counsel for the non – applicant, the suit house is being kept locked, learned counsel for the applicant disputed that fact and stated that since the applicant has a large family, the house owned by him is insufficient and so the suit house also is being occupied by some members of his family.

       3. Learned counsel for the non – applicant had also pointed out that the applicant had been participating in the suit till quite a late stage and after having sufficiently protracted the trial absented himself. He also urged that the non – applicant decree holder is an ailing person aged a bout 75 years and as stared by him, he is presumably suffering from leprosy also.

       4. The executing Court on a consideration of the circumstances rejected the judgment debtor's application to stay the execution under Rule 26 of Order 21 of the Code. He admittedly had the jurisdiction. There is nothing to indicate that the order is illegal or the Court below had acted with any material irregularity in exercise of its jurisdiction.

       5. Having considered the circumstances, I find no ground to interfere in the impugned. order.

       6. Consequently, this revision fails and is hereby dismissed. The applicant besides bearing his own costs of this revision shall also pay those of the non – applicant. Counsel's fee as per the schedule. Revision dismissed with Costs.