IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 WP(C).NO. 22993 OF 2010(O) ------------------------------------------ OS.34/2007 OF SUB COURT, THIRUVALLA .................... PETITIONER(S): 2ND DECREE HOLDER --------------------------------------------------------- JOSEPH PHILIP, THAZHAYIL PUTHEN VEETTIL, PLOT NO.50, J.P.NAGAR II STAGE, RAILWAY STATION P.O., KUTTAPPUZHA, THIRUVALLA TALUK. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.V.SUNIL KUMAR (PANACHAMOODU) SRI.H.JAWHAR RESPONDENT(S): JUDGEMENT DEBTORS -------------------------------------------------------------- 1. EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD, PATHANAMTHITTA DIVISION, KUTTAPPUZHA P.O., THIRUVALLA. 2. KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. ADV. POOVAPPALLY M.RAMACHANDRAN NAIR,SC.KSHB FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.22993 of 2010 ==================================== Dated this the 22nd day of July, 2010 J U D G M E N T This Writ Petition is in challenge of order passed by learned Sub Judge, Thiruvalla on E.A. No.78 of 2010 in E.P. No.38 of 2009 in O.S. No.34 of 2007. Petitioner-plaintiff No.2 and plaintiff No.1 sued respondents for a decree for specific performance, declaration and settlement of accounts. A decree was passed on 25.03.2009 in favour of petitioner alone for specific performance while other reliefs were negatived. To execute the decree for specific performance petitioner filed E.P. No.38 of 2009. Respondents filed Ext.P2, application for stay of execution on the ground that they have already challenged the decree in appeal with I.A. No.742 of 2009 to condone the delay in filing the appeal. Executing court after hearing both sides allowed Ext.P2, application vide Ext.P3, order dated 05.07.2010. As per that order execution of decree has been stayed until the disposal of I.A. No.742 of 2009. Executing court has placed reliance on the decision in Mathew Titus v. Thankamma Titus (1999 [3] KLT 538). 2. Learned counsel for petitioner contended that decision relied on by the executing court has no application to the facts of W.P(C) No.22993 of 2010 -: 2 :- the case. According to the learned counsel Order XXI Rule 26 of the Code of Civil Procedure (for short, “the Code”) has no application since that rule applied only to application for stay preferred to the court to which a decree certificate has been transferred for execution. But in this case the very same court which passed the decree is executing the decree and Ext.P2, application is preferred in the very same court. In support of that argument learned counsel has placed reliance on the decision in P.S. John v. Leelamma and Others (2008 [3] KLT 378). It is the further contention of petitioner that notice to plaintiff No.1 (respondent No.1) on I.A. No.742 of 2009 is purposely being delayed by the contesting respondents in spite of direction given by the appellate court consequence of which is that respondents are enjoying the benefit of Ext.P3, order passed by the executing court. I have heard learned counsel for respondent Nos.1 and 2 who supported the order under challenge. 3. This Court in Mathew Titus v. Thankamma Titus (supra) held that when the appellate court is prevented from considering an application for stay of execution due to the pendency of an application to condone the delay in filing the appeal, executing court can grant stay of execution invoking power under Order XXI Rule 26 of the Code. That decision does W.P(C) No.22993 of 2010 -: 3 :- not make it clear whether request for stay was moved in the transferee court where decree was being executed. In P.S. John v. Leelamma (supra) this Court held that Order XXI Rule 26 of the Code applies to cases where a decree was passed by one court and it was transferred to another court for execution which situation does not arise in the present case. But I am not persuaded to think that the court which passed the decree and executing it has no power to grant stay. Power of such court to grant stay is in built in Order XXI Rule 26 of the Code in that the said rule says that the court to which a decree has been sent for execution shall upon sufficient cause being shown stay execution of the decree for reasonable time “to enable the judgment debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction in respect of the decree or execution thereof for an order to stay execution.” Even otherwise it is not as if executing court is without power to grant stay in appropriate case. If not Rule 26 of Order XXI, Sec.151 of the Code should apply. Purport of investing a court with inherent powers is to pass appropriate orders to render justice when the Code does not provide any other provision under which court could pass such an order. Therefore I am not impressed by the contention that executing court in this case has acted without authority in granting stay. W.P(C) No.22993 of 2010 -: 4 :- 4. Then the next question is whether stay ought to have been granted. That is a matter which was largely within the discretionary jurisdiction of the executing court and that court has exercised the discretion in favour of granting stay. 5. Next grievance of petitioner is that service of notice on plaintiff No.1 who is respondent No.1 in I.A. No.742 of 2009 in whose favour there is no decree passed is being delayed by the respondents. I.A. No.742 of 2009 is now posted on 28.07.2010. The appellate court shall take all necessary steps to ensure that either notice is served on respondent No.1 in I.A. No.742 of 2009 or if he is not a necessary party to delete him from the array of parties. I make it clear that if there is any dilatory tactics adopted by the respondents in the matter of taking steps to serve notice on respondent No.1 on I.A. No.742 of 2009 and therefore disposal of that application is prolonged it will be open to the petitioner to approach this Court again at the appropriate stage in challenge of Ext.P3, order. Writ Petition is disposed of with the above observation. THOMAS P. JOSEPH, JUDGE. vsv