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(2022) Law Today Live Doc. Id. 17181
Decided on: 10.11.2022
Present:
Mr. Kanhiya Soni, Advocate, for the petitioner.
Constitution of India, Article 227 – Code of Civil Procedure, 1908 (V of 1908), Section 96, Order 21, Order 39 Rule 1 and 2, Order 41 Rule 5 -- Execution of decree for specific performance – First Appeal and Stay application pending since 2019 – Objection to execution dismissed on the ground that there is no stay – Ld. Lower appellate Court directed to decide the application Order XLI Rule 5 read with Order XXXIX Rules 1 and 2 CPC seeking stay on operation of judgment and decree passed by the trial Court, on the next date of hearing -- Till then execution proceedings shall remain stayed.
(Para 1-4)
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TRIBHUVAN DAHIYA, J. (ORAL) –
1. This revision petition under Article 227 of the Constitution of India has been filed for setting aside order dated 07.09.2022 (Annexure P-7) passed by the executing Court dismissing the petitioner-judgment debtor’s objections to execution of the decree dated 31.07.2018 passed in suit for specific performance against him, on the ground that there is no stay on the execution proceedings despite an appeal challenging the judgment and decree having been filed by the judgment debtor.
2. Learned counsel for the petitioner submits that alongwith the appeal filed before the lower appellate Court challenging judgment and decree dated 31.07.2018 passed by the trial Court, an application seeking stay on its operation was also filed, which has been placed on record as Annexure P-3, dated 23.01.2019. It is further contended that despite application having been filed in January 2019, it has not been decided by the lower appellate Court so far. Now the case stands adjourned to 20.01.2023 for consideration on the application for stay.
3. In the aforesaid facts, the lower appellate Court is directed to decide the application dated 23.01.2019 filed by the petitioner/judgment debtor under Order XLI Rule 5 read with Order XXXIX Rules 1 and 2 CPC seeking stay on operation of judgment and decree dated 31.07.2018 passed by the trial Court, on the next date of hearing, i.e., 20.01.2023.
4. Till then execution proceedings shall remain stayed.
5. Disposed of.
6. Since the main petition itself stands decided, all pending applications, if any, are disposed of as having been rendered infructuous.
Order accordingly.
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