An executing court lacks the jurisdiction to stay the execution of its own decree based on the pendency of an appeal or equitable considerations; such power is vested exclusively in the appellate court under Order XLI Rule 5 of the CPC.

O R D E R:

Mr. M. Ram Mohan Reddy, learned counsel appearing for the petitioner, was heard. Despite due service of notice, respondent Nos. 1 and 2 have chosen to remain unrepresented and have not entered appearance.

2. The present Civil Revision Petition is filed assailing the order dated 26.09.2025 passed in E.A. No. 12 of 2025 in E.P. No. 32 of 2023 arising out of O.S. No. 66 of 2007 on the file of the Additional Senior Civil Judge-cum-Additional Assistant Sessions Judge, Karimnagar. The petitioner, who is the decree holder (arrayed as defendant No.2 in the suit), is aggrieved by the order of the executing Court granting stay of execution of the decree.

The brief facts, insofar as they are relevant for adjudication, are that the executing Court, by the impugned order, allowed the application filed by the respondents/judgment debtors and granted stay of execution of the decree passed in the counter-claim in O.S. No. 66 of 2007, pending disposal of Second Appeal No. 288 of 2024 before this Court.

3. Learned counsel for the petitioner submits that against the decree passed by the trial Court execution petition was filed in E.P. No. 32 of 2023. At that stage, the respondents/judgment debtors filed E.A. No. 12 of 2025 seeking stay of execution solely on the ground that a Second Appeal bearing No. 288 of 2024 is pending before the High Court. The executing Court, invoking Order XXI Rule 26 of the Code of Civil Procedure, 1908 (for short, “CPC”), granted stay of execution till disposal of the said appeal.

It is contended that the impugned order suffers from patent illegality and material irregularity in the exercise of jurisdiction. The executing Court failed to appreciate that the Second Appeal is accompanied by an application for condonation of delay as well as a stay petition, both of which are yet to be adjudicated by the appellate Court. In the absence of any interim order of stay granted by the High Court, the executing Court could not have interdicted the execution proceedings.

4. It is further contended that the reliance placed on Order XXI Rule 26 CPC is wholly misconceived. The said provision is attracted only in cases where a decree is sent for execution to another Court, and not where the decree is being executed by the Court, which passed it. Therefore, the executing Court, being the Court of first instance, lacks jurisdiction to invoke the said provision. It is submitted that once an appeal is filed, the power to grant stay of execution is governed exclusively by Order XLI Rule 5 CPC and vests solely in the appellate Court.

5. It is also argued that even assuming a limited discretionary power exists, such power can be exercised only within the period prescribed for filing an appeal. In the present case, the application for stay was filed beyond the limitation period and after filing of the Second Appeal along with a delay condonation petition. Hence, the executing Court has clearly acted in excess of jurisdiction.

6. In support of the above submissions, reliance is placed on Syamala v. Thapodhanan , 2020 SCC OnLine Ker 8401, wherein it was held that once an appeal is filed, the executing Court has no jurisdiction to stay execution in the absence of a stay granted by the appellate Court. Reliance is a