J U D G M E N T

This is an original petition filed under Article 227 of the Constitution of India by the judgment debtor in E.P.No.9 of 2020 (in O.S.No.26 of 2017) pending before the Sub Court, Devikulam.

The respondent herein is the decree holder.

2. Heard the learned counsel for the petitioner on admission.

3. The grievance pointed out by the learned counsel for the petitioner is that the petitioner filed a petition to set aside the ex-parte decree passed by the Sub Court, Muvattupuzha in O.S.No.26 of 2017 dated 17.02.2020. In the meanwhile, the said ex-parte decree has been transmitted to Sub Court, Devikulam for execution. Thereafter, the petitioner filed E.A.No.44 of 2021 under Order 21 Rule 26 of the Code of Civil Procedure for staying the execution. But the Execution Court dismissed the application as per order dated 16.12.2021.

4. The learned counsel for the petitioner pressed for stay of execution of the decree after setting aside Ext.P7, the order impugned.

5. It is not in dispute that Order 21 Rule 26 of the Code of Civil Procedure enables a judgment debtor to canvass an order of stay in executing the decree for a reasonable time to enable the judgment debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof for an order to stay execution. Going by the wording of the above statutory provision, the same is intended as an interim measure, not otherwise.

6. Even though the present petition filed under Order

21 Rule 26 was dismissed on 16.12.2021, the petitioner who obtained sufficient time to move before the appropriate Court for staying the execution, not opted the said remedy, if any. Instead of opting the said remedy, this original petition has been filed against the order dismissing an application under Order 21 Rule 26 of the Code of Civil Procedure, after expiry of three months from the date of the order. Since the only rider that has been canvassed in the matter of executing the decree is pendency of a petition to set aside the ex-parte decree, an early disposal of the said petition can be pressed into before the trial court. Thus, it appears that the intention behind filing this petition is to stall the proceedings in EP without opting the proper remedy, if any, available to the petitioner. Therefore, this original petition deserves no merit. Going by the order, I do not find any illegality, perversity or arbitrariness to interfere with the impugned order, in a petition filed under Article 227 of the Constitution of India. Therefore, this original petition lacks merit and the same deserves dismissal.

Accordingly, this original petition is dismissed.

Sd/-

A.BADHARUDEEN, JUDGE rkj APPENDIX OF OP(C) 522/2022 PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE AGREEMENT DATED

20.08.2014.

Exhibit P2 TRUE PHOTOCOPY OF THE PLAINT IN THE SUIT IN O.S.NO. 26/2017 OF THE SUB COURT, MUVATTUPUZHA DATED 27.07.2017.

Exhibit P3 TRUE PHOTOCOPY JUDGMENT DATED 18.01.2019 IN OP(C) 188/2019 OF HON'BLE HIGH COURT OF KERALA.

Exhibit P4 TRUE PHOTOCOPY APPLICATION DATED

28.07.2020 FOR SETTING ASIDE THE EXPARTEE DECREE IN OS NO. 26/2017 OF THE SUB COURT, MUVATTUPUZHA.

Exhibit P5 TRUE PHOTOCOPY OF THE EXECUTION PETITION DATED 07.12.2020 IN E.P NO. 9/2020 IN O.S NO. 26/2017 PENDING BEFORE THE SUB COURT, DEVIKULAM.

Exhibit P6 TRUE PHOTOCOPY OF THE PETITION FOR STAY DATED 25.10.2021 IN OS NO. 26/2017 OF THE SUB COURT, MUVATTUPUZHA.

Exhibit P7 TRUE PHOTOCOPY OF THE ORDER DATED

16.12.2021 IN E.A NO.44/2021 IN E.P.NO. 9/2020 IN O.S NO. 26/2017 OF THE SUB COURT, DEVIKULAM.