The Executing Court lacks jurisdiction to stay execution proceedings pending appeal; such orders must originate from the Appellate Court.

J U D G M E N T

Respondents-decree holders-filed E.P.No.69/2000 in O.S.No.595/1986 for execution of the decree. Petitioner filed an application under Rule 99 of Order XXI of Code of Civil Procedure , which was dismissed by the Executing Court. Petitioner challenged that order before the Sub Court, Neyyattinkara, in A.S.No.84/2003. When the Execution Petition is proceeded, petitioner filed an application under Rule 26 of Order XXI of , to stay the execution till the disposal of the appeal. Executing Court dismissed the petition holding that as the appeal was already admitted, it is for the Appellate Court to grant an order of stay, and not by the Executing Court. That order was challenged before this Court by filing C.R.P.No.1494/2003. An order of stay was granted by this Court originally. Subsequently, under Ext.P6 order, dated 29.2.2008, this Court confirmed the order of the Executing Court and held that petitioner is not entitled to an order of stay as sought for before the Executing Court. On the submission of the learned counsel W.P.(C) No.11682/2008 appearing for the petitioner in the revision, this Court directed Sub Court, Neyyattinkara, to dispose the appeal itself, as expeditiously as possible, within the shortest possible time, at any rate, within a period of six months, from the date of receipt of a copy of the order. Though that appeal was directed to be disposed of within a period of six months, this Court did not either direct the Appellate Court to grant an order of stay or granted an order of stay till the disposal of the appeal. This petition is filed thereafter under Article 227 of the Constitution of India for a direction to the Sub Court, Neyyattinkara, to take a decision in I.A.No.416/2003, within the time fixed by this Court, and also for a direction to the Munsiff to keep the Execution Petition in abeyance till the disposal of the appeal.

2. The learned counsel appearing for the petitioner and the learned counsel appearing for the respondent were heard.

3. The argument of the learned counsel is that even though an appeal is pending from 2003, and this Court under Ext.P6 directed to dispose the same within six months, the appeal was not disposed of, and when the appeal is pending, decree holders are not entitled to take delivery of the property, and therefore, order for W.P.(C) No.11682/2008 delivery is to be stayed.

4. The learned counsel appearing for the respondent argued that it is for non-granting of an order of stay till the disposal of the first appeal by the Executing Court, C.R.P.No.1499/2003 was filed, and this Court did not grant an order of stay till the disposal of the first appeal, and, therefore, petitioner is not entitled to an order of stay. I find force in that submission. The grievance of the petitioner in C.R.P.NO.1499/2003 was the non-granting of an order of stay, during the pendency of the appeal. This Court did not grant an order of stay, though the appeal was directed to be disposed within a period of six months. Therefore, petitioner is not entitled to get a direction to the Executing Court to keep the executing proceedings in abeyance, as sought for under prayer No.1. As this Court has directed the Sub Court to dispose of the appeal within a period of six months from the date of receipt of a copy of this judgment, learned Sub Judge is directed to dispose of the appeal within the time fixed by this Court.

Petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE W.P.(C) No.11682/2008 nj.