1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3226 OF 2010 Sou. Nanda Baban Khalade. .. Petitioner Vs Nisargopachar Gramsudhar Trust & Ors. .. Respondents -- Shri Sidharth R. Ronghe for the Petitioner. Shri Avinash R. Avhad for the Respondents. -- CORAM : A.S.OKA, J. DATE : 29TH APRIL 2010 P.C: . Heard learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondents. 2. In a suit filed by the Respondents, there is a decree for possession passed against the Petitioner. The Petitioner made an application under Rule 13 of Order IX of the Code of Civil Procedure, 1908 ( hereinafter referred to as the said Code ) for setting aside the decree. 2 There was a delay in filing the said application. The application for condonation of delay is pending. In the meanwhile, in an application for execution of the decree filed by the Respondents, the Petitioner made an application for stay of execution till the application for setting aside the ex part decree is decided. By the impugned order dated 15th February, 2010, the said application has been allowed and stay has been granted till disposal of the delay condonation application subject to the Petitioner depositing a sum of Rs.5,000/- per month from the date of the said order as compensation. 3. The submission of the learned counsel appearing for the Petitioner is that the Executing Court could not have imposed condition of deposit of the amount of Rs.5,000/- per month. He submitted that in any case, the condition is very harsh. The learned counsel appearing for the Respondents supported the impugned judgment and order. 4. I have considered the submissions. The only power which is possessed by the Executing Court to stay the execution of the decree is under Rule 26 of Order XXI of the said Code. On a plain reading of the said provision, the power to grant stay under the said provision is very limited one. Only for a reasonable period, the Executing Court can grant stay to enable the judgment debtor to apply for stay by preferring an appeal before the Appellate Court or to apply for stay before the Court which has passed the decree by filing appropriate proceedings. In the present case, the power 3 has been exercised by the Executing Court by directing that the stay will continue to operate till the disposal of the application for condonation of delay. The Executing Court has clearly exceeded the jurisdiction vested in it as the power to grant stay can be exercised by granting stay only for a reasonable period. 5. Therefore, the impugned order will have to be modified and the stay granted will have to be continued for a reasonable period to enable the Petitioner to apply for stay in the pending application for condonation of delay. A sum of Rs.10,000/- has been already deposited by the Petitioner in terms of the impugned order. The said amount will continue to remain deposited subject to further orders which may be passed on an application for stay which may be preferred by the Petitioner. It is obvious that the application for stay which may be made by the Petitioner will be decided after giving an opportunity of being heard to the Respondents. It will be open for the Respondents to oppose the said application and to raise a contention that even if the stay is to be granted, the same should be made subject to deposit of appropriate amount by way of compensation. 6. Hence, the Writ Petition is disposed of by passing the following order. (a) The impugned order is quashed and set aside. 4 (b) The execution of the decree for possession will remain stayed till 30th June, 2010, subject to condition of the Petitioner filing appropriate application for stay in the pending application for condonation of delay on or before 10th June, 2010. If application for stay is not filed within the stipulated period, the decree will become forthwith executable. (c ) If application for stay is filed within the stipulated time, it will be decided on its own merits without being influenced by the impugned order as well as by this order. (d) It will be open for the Respondents to oppose the said application and to raise contention that even if the Court is inclined to grant stay, the same shall be made subject to deposit of a reasonable amount by way of compensation. (e) The application for stay shall be disposed of as expeditiously as possible. Hearing of the application for condonation of delay is also expedited and the same shall be decided on or before 31st October, 2010. 5 (f) The amount of Rs.10,000/- deposited by the Petitioner will continue to remain deposited with the Court. The deposit will be subject to further orders which may be passed in the application for stay which may be preferred by the Petitioner. (g) The Petition is partly allowed in above terms with no orders as to costs. (A.S.OKA, J)