ORDER :

ALOK AWASTHI, J.

The present petition under Article 227 of the Constitution of India has been filed by the petitioners/judgement debtors, aggrieved by the order dated 03.12.2025 passed by the 9th Civil Judge, Senior Division, Indore in Execution Case No. EXA/767/2025. By the impugned order, the Executing Court rejected the application filed by the petitioners under Order 21 Rule 26 of CPC seeking stay of execution of the possession warrant until receipt of the assessment reader's report and a stay order from the Appellate Court in the pending appeal.

2. The facts, in brief, are that the respondents/decree holders filed Regular Civil Suit No.59-A/2016 against the petitioners for specific performance and possession, which was decreed in favour of the respondents vide judgement and decree dated 25.03.2025. The petitioners preferred Regular Civil Appeal No.100/2025 against the said decree before the Appellate Court, claiming exemption from court fee on grounds of poverty. During the pendency of the appeal, the respondents initiated Execution Case No.EXA/767/2025 for enforcement of the decree. The petitioners filed an application under Order 41 Rule 5 of CPC for stay of execution of the decree, but the Appellate Court kept the same in abeyance pending the assessment reader's report on court fee and did not grant any interim stay.

3. In the absence of a stay from the Appellate Court, the petitioners approached the Executing Court with an application under Order 21 Rule 26 of CPC for non-execution of the possession warrant until the Appellate Court passes orders on their stay application. The Executing Court rejected the said application vide impugned order, holding that there was no sufficient cause to stay the execution, that the Executing Court has limited jurisdiction under Order 21 Rule 26 of CPC, and that no stay had been granted by the Appellate Court.

4. Learned counsel for the petitioners submits that the Executing Court took a hyper-technical view and erred in rejecting the application. He contends that the petitioners are poor, have no means of livelihood, and the appeal has been filed with a plea for exemption from court fee. The Executing Court ought to have granted a reasonable time under Order 21 Rule 26 of CPC to enable the petitioners to pursue their stay application before the Appellate Court, especially considering their financial constraints and the pendency of the appeal.

5. I have heard counsel for the petitioners and perused the record, including the impugned order and relevant provisions of the CPC.

6. Order 21 Rule 26 of CPC provides as under :-

"(1) The Court to which the decree is sent for execution may, on sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the Court which passed the decree or to any Court having appellate jurisdiction in respect of the decree or its execution for an order staying the execution...

(2) Pending the result of such application, where the property or person of the judgment-debtor has been seized under execution, the Court which issued the execution may make an order for the restitution or discharge of such person.

(3) Before making an order to stay execution... the Court shall require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit."

7. The provision under Order 21 Rule 26 of CPC is intended to afford a limited respite to the judgement debtor by granting a reasonable time to approach the appropriate Court (decreeing Court or Appellate Court) for a stay. However, this power is discretionary and available only upon showing sufficient cause. It is not a substitute for obtaining a stay from the Appellate Court under Order 41 Rule 5 of CPC, which empowers the Appellate Court to stay execution on sufficient cause being shown, subject to conditions like security or deposit. Mere filing of an appeal does not automatically operate as a stay, as explicitly provided in Order 4