Allowed

Kollipara Krishna Rao, v. P. Sowmya

Telangana HC30 Mar 2011CRP/6040/2010

Case brief

AI extract

What is this about?

This revision challenged a stay of execution granted by the lower court after the time for appeal had expired. The court held the lower court lacked jurisdiction. It allowed the petition with liberty to approach the appellate court and maintained status quo for one month.

What did the court decide?

Stay of execution of the decree maintained by lower court for one month pending jurisdictional transfer to appellate court.

Kollipara Krishna Rao, Vs P. Sowmya — Execution and Attachment | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD

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WEDNESDAY, THE THIRTIETH DAY OF MARCH, TWO THOUSAND AND ELEVEN

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PRESENT

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

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CIVIL REVISION PETITION No. 6040 OF 2010

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BETWEEN:

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Kollipara Krishna Rao

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…PETITIONER AND

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P.Sowmya and others

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…RESPONDENTS

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The Court made the following:

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THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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CIVIL REVISION PETITION No. 6040 OF 2010

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O R D E R:

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The revision is filed against the order in E.A.No.184 of 2010 in E.P.No.151 of 2009 in O.S.No.636 of 2001 on the file of Principal Junior Civil Judge, Ranga Reddy District, granting stay of the execution of the decree.

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2. The decree-holder obtained a decree for permanent injunction and mandatory injunction and as against that an appeal is said to have been presented before the District Court. When execution petition was

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filed, the present E.A. was filed for stay of the execution of the decree. The learned Principal Junior Civil Judge taking into consideration that as the appeal is filed and pending in A.S.S.R.No.21883 of 2009 on the file of the Principal District Judge, Ranga Reddy District till the disposal of the same, the stay was granted. Aggrieved by the said Order, the present revision is filed.

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3. The point that arises for consideration is whether the order of stay granted by the lower Court is legal and sustainable?

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4. Evidently, as against the decree, the appeal is said to have been presented and A.S.S.R.No.21883 of 2009 is said to be pending before the Principal District Judge, Ranga Reddy. The Court, which granted a decree, has got limited power to grant stay of the execution. Under Order 41, Rule 5(2) of the Civil Procedure Code (for short, “CPC”) the power of the Court to grant a stay as follows:

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“(2) Stay by Court which passed the decree:- Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.”

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5. Hence, the stay is only permissible before the expiration of the time allowed for appealing. Therefore, when the time allowed for appeal is over, the original Court which granted the decree has no power to grant stay of execution and if at all the judgment-debtor is aggrieved, he can take the stay of execution from the appellate Court under Order 41, Rule 5 of CPC even if the appeal is not numbered while presenting the application for condonation of the delay. Therefore, the exercise of the power of the lower Court is not valid and the order suffers from infirmity.

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6. However, the judgment debtor is at liberty to approach the District Court, Ranga Reddy for necessary relief and status-quo shall

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be maintained for a period of one month till the judgment debtor gets the relief from the appellate Court and the lower Court shall dispose of the application for condonation of the delay within one month from the date of receipt of this order and till the disposal of that application, status-quo shall be continued.

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7. With the above liberty, the Civil Revision Petition is disposed of. There shall be no order as to costs.

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________________________ N.R.L.NAGESWARA RAO, J

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Date: 30-03-2011.

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INL

Kollipara Krishna Rao, v. P. Sowmya

Case brief

What is this about?

What did the court decide?

Kollipara Krishna Rao, v. P. Sowmya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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