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HIGH COURT OF KERALA
K.ABRAHAM MATHEW, J
P K MOHAMMED BASHEER – Appellant
Versus
NARGIS ZACHARIAH – Respondent
OP (CIVIL) 2892/2015
Stay - Execution - Code of Civil Procedure Order 9 Rule 13 - The court stays execution of a decree for possession pending the disposal of an application to set it aside, highlighting the importance of fair procedural consideration.
Fact of the Case:
The petitioner, a brother of the first respondent, sought to set aside a decree of possession obtained by the respondents and filed a delay condonation application, both of which were dismissed. He requested a stay on the decree's execution while his appeal is pending.
Finding of the Court:
The court acknowledged the petitioner's undertaking to return possession if the appeal fails and instructed the appellate court to prioritize the appeal's disposal within a month, thereby staying execution of the decree.
Issues: Whether the petitioner is entitled to a stay of execution of the decree pending the resolution of an appeal against the dismissal of his application to set it aside.
Ratio Decidendi: The court determined that the balance of justice necessitated staying the execution until the appeal is disposed of, allowing the petitioner due process in line with principles of fair trial.
Final Decision: The execution of the decree is stayed until the appeal is decided within one month.
JUDGMENT
Petitioner is the brother of the first respondent. The second respondent is the wife of the latter. The respondents have obtained a decree for recovery of possession of the plaint schedule property. Execution proceedings are pending. The petitioner has filed an application to set aside the decree under Order 9 Rule 13 of the Code of Civil Procedure along with an application to condone the delay in filing it. Both were dismissed. CMA is pending. The prayer in this Original Petition is to stay the execution of the decree till the disposal of the CMA.
2. Heard the learned counsel for the petitioner and the respondents.
3. Pursuant to the directions issued by this court the petitioner has already filed an undertaking in the form of an affidavit that if the C.M.Application filed by him happens to be dismissed he will hand over possession of the property within seven days. I think in these circumstances it is sufficient to issue a direction to the appellate court to dispose of the CMA within one month from the date of receipt or production of a copy of this judgment. Till then, the delivery shall not be effected.
In the result, this Original Petition is disposed of with a direction to the District Judge to dispose of the C.M.A.No. 77 of
2015 within one month from the date of receipt or production of a copy of this judgment. Till the disposal of the CMA, the delivery is stayed.
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