Execution proceedings can continue if no stay order is in place on the underlying judgment, highlighting the importance of adherence to procedural timelines.

JUDGMENT

The original petition is filed challenging Ext.P12 order passed in E.A.No. 103/2022 in E.P.No.76/2021 in O.S.No. 34/2015 by the Court of Munsiff, Nadapuram. (court below). The petitioner is the judgment debtor and the respondent is the decree holder in the execution petition.

2. The relevant background facts, leading to Ext.P12 order, are; the respondent had filed O.S. No. 34/2015 before the court below for a decree of mandatory injunction and other consequential reliefs. The suit was decreed as per Ext.P3 judgment. The petitioner had filed I.A. Nos. 378 & 379 of 2018 (Exts.P4 & P4(a)), to set aside the ex-parte decree and to condone the delay. The court below, by Ext.P6 order, dismissed the above applications. The respondent has now laid the decree to execution. The petitioner again filed I.A.No. 1/2021 and RPIA.No. 25/2021, to set aside the ex-parte decree and to condone the delay. The court below, by Ext.P9 order, dismissed the said applications. Challenging Ext.P9 order, the petitioner has preferred CMA.No. 7/2022, before the Court of Subordinate Judge, Vadakara (lower Appellate Court). As there is a delay in filing the appeal, the stay petition has not been considered. Therefore, the petitioner filed E.A.No. 103/2022 (Ext.P11) to stay the execution proceedings. The court below, by the impugned Ext.P12 order, has dismissed Ext.P11 application. Ext.P12 is erroneous and wrong. Hence, the original petition.

3. Heard; Sri. Sharan Shahier, the learned counsel appearing for the petitioner, on admission.

4. The short point is, is there any illegality in Ext.P12 order.

5. Undisputedly, the petitioner’s applications to set aside the ex-parte decree and condone the delay have been dismissed by the court below by Ext.P9 order.

6. Assailing Ext.P9 order, the petitioner has filed CMA.No.7/2022 before the lower Appellate Court.

7. Admittedly, the appeal has not been admitted and no order staying the decree has been passed till date, as there is a delay in filing the appeal. The petitioner has not taken any steps to get the delay condoned. Instead, the petitioner has filed Ext.P11 application before the court below to stay the execution of the decree. The court below has in view of the pendency of the appeal and in the light of Order 41 Rule 5 of the Code of the Civil Procedure, rightly declined to stay the execution proceedings by the impugned Ext.P12 order. I do not find any error or illegality in Ext.P12 order, warranting interference by this Court under Article 227 of the Constitution of India.

The original petition is meritless and hence fails.