A single judge dismissed the Civil Revision Petition. The court held that mere appeal does not stay execution proceedings absent a specific order from the appellate court under Order XLI Rule 5 CPC. Since no stay was granted, the executing court was justified in allowing execution and issuing the delivery warrant.
No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HONOURABLE SRI JUSTICE A.GOPAL REDDY
CIVIL REVISION PETITION No.996 of 2011
Date of Order:18.03.2011
Between:
A.Venkata Subbaiah
..Petitioner and Parvataneni Krishna Prasad
..Respondent
The Court made the following Order:
THE HONOURABLE SRI JUSTICE A.GOPAL REDDY
CIVIL REVISION PETITION No.996 of 2011
ORDER :-
Petitioner/judgment debtor filed this revision against the orders passed in E.P.No.228 of 2010 in O.S.No.296 of 2007, dated 14.03.2011, in allowing the E.P. and issuing delivery warrant in execution of the decree.
Admittedly, the suit being O.S.No.296 of 2007 filed by the respondent/decree holder/plaintiff for recovery of the possession of the suit schedule property i.e., a shop and for recovery of amount of Rs.50,000/towards arrears of rent, was decreed by the trial court, against which the petitioner preferred an appeal being A.S.No.430 of 2010 before XI Additional District Judge, Krishna, Gudivada. In the said appeal, the appellate court initially stayed the execution of the decree until 17.01.2011 and later it was not extended. The petitioner filed a memo for extension of the said interim orders, but no orders have been passed on it. Meanwhile, the respondent/decree holder filed the E.P. and it was allowed. Hence, the present Civil Revision Petition.
It is now fairly well settled that mere filing of an appeal will not operate as stay of the proceedings under the decree or order appealed, except so far as the appellate court stays the execution of the decree as per Order XLI Rule 5 of the Civil Procedure Code, 1908.
Once there is no stay granted by the lower appellate court after 18.01.2011, there is no bar for the executing court to order execution. Therefore, the order passed by the executing court does not suffer from any illegality or irregularity, warranting interference by this Court.
The Civil Revision Petition is, accordingly, dismissed. There shall be no order as to costs.
March 18, 2011
A. GOPAL REDDY, J
Lmv
3 issues framed by the court
Whether filing an appeal without a court order stays execution proceedings under Order XLI Rule 5 of the Civil Procedure Code.
Whether the execution court committed any illegality or irregularity in allowing execution of the decree despite the pending appeal.
Whether the Civil Revision Petition filed against the execution order deserves interference.
1 provisions across 1 enactments
A. Venkata Subbaiah
Parvataneni Krishna Prasad
A. GOPAL REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
