A court cannot stay execution of proceedings without proof of substantial loss under Order 41 Rule (5)(3).

JUDGMENT

The petitioner herein is the appellant in A.S.No.37/2020 on the files of the Sub Court, Karunagappally. The above appeal is filed aggrieved by the judgment and decree in O.S.No.365/2011 on the files of the Munsiff Court, Karunagappally.

2. The first respondent as plaintiff filed the suit for declaration of title and consequential permanent prohibitory and mandatory injunction. The petitioner was impleaded as additional 5^th defendant as per order in I..A.No.239/2013 in the O.S. The Trial Court by Ext.P2 decreed the suit granting permanent prohibitory injunction restraining the defendants from trespassing into plaint schedule property changing its present nature or lie, demolishing the barbed wire fencing or from cutting down any trees on the western boundary. While A.S.No.37/2020 is pending, the plaintiff filed E.P.No.36/2021. On receipt of notice in E.P., the petitioner filed I.A.No.1/2021 in appeal for staying the execution proceedings in E.P.No.36/2021.

3. The learned Sub Judge considered the application and by Ext.P6 order dismissed the same. The reasoning given by the learned Sub Court is that execution proceedings is filed for violation of the decree passed in O.S.No.365/2011. In execution proceedings it is stated by the decree holder that the 5^th respondent along with his henchmen violated the decree passed in this case, tresspassed into the plaint schedule property and destroyed certain pillars of the barbed wire fencing on its western side on 08.07.2021 at 5.00p.m. The 5^th defendant/judgment debtor gave permission to draw electric line through the decree schedule property on its western side, even though there is a way for drawing the line. Since the execution proceedings is filed for prosecuting the 5th defendant for violating the decree, the subordinate judge has held that the same cannot be stayed under Order 41 Rule(5)(3). Order 41 Rule (5)(3) states that no stay of execution shall be made unless the court is satisfied that substantial loss may result to facts applying for stay of execution. The execution petition is filed for prosecuting the defendant and his henchmen for violating the decree passed.

4. Therefore, I concur with the order passed by the learned subordinate Judge through Ext.P6. Taking into consideration that the appeal is filed in the year 2020, I deem it appropriate to direct the learned Sub Judge, Karunagappally, to dispose of A.S.No.37/2020, within a period of three months from the date of receipt of a copy of this judgment. It is also made clear that all available remedies to the petitioner to contest E.P.No.36/2021 is left open.

The original petition is disposed of accordingly.

sd/

BASANT BALAJI JUDGE jm/

APPENDIX OF OP(C) 568/2025 PETITIONER EXHIBITS Exhibit P1 THE COPY OF WRITTEN STATEMENT DATED

20.6.2014 FILED IN O.S NO.365/2011 BY THE PETITIONER/APPELLANT BEFORE THE MUNSIFF COURT, KARUNAGAPPALLY Exhibit P1(a) THE COPY OF ADDITIONAL WRITTEN STATEMENT DT.25.11.2017 FILED IN O.S NO.365/2011 BY THE PETITIONER/APPELLANT BEFORE THE MUNSIFF COURT, KARUNAGAPPALLY Exhibit P2 THE COPY OF JUDGMENT AND DECREE IN O.S NO.365/2011 DATED 28.9.2020 ON THE FILE OF MUNSIFF COURT, KARUNAGAPPALLY Exhibit P3 THE COPY OF APPEAL SUIT DATED 17.10.2020 IN A.S NO.37/2020 ON THE FILE OF SUB COURT, KARUNAGAPPALLY Exhibit P4 THE COPY OF EXECUTION PETITION FILED BY THE 1ST RESPONDENT/PLAINTIFF BEFORE THE MUNSIFF COURT, KARUNAGAPPALLY IN E.P NO.36/2021 DATED 12.07.2021 Exhibit P5 THE COPY OF AFFIDAVIT AND PETITION IN I.A NO.1/2021 IN A.S NO.37/2010 DATED

13.8.2021 Exhibit P6 THE COPY OF ORDER IN I.A NO.1/2021 IN A.S NO.37/2020 DATED 12.11.2024 ON THE FILE OF SUB COURT, KARUNAGAPPALLY