IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 23469 of 2008(R) -------------------------- AGAINST THE ORDER IN EP 160/07 IN OS.203/1999 of I ADDL.MUNSIFF COURT, NEYYATTINKARA .................... PETITIONER: PETITIONER/JUDGMENT DEBTOR: -------------- P.MOHANA RAM @ MOHAN, S/O. PALAYYAN, VILLAGE OFFICER, VAZHICHAL VILLAGE OFFICE PANTHA P.O., NEYYATTINKARA TALUK. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.S.S.HUSSAIN SRI.P.K.NIJOY RESPONDENTS: RESPONDENTS ----------------- ASOAN U. SHAAN, MINOR REPRESENTED BY HIS MOTHER USHA, KANNAMKARA, MURUNGAVILAI, PALLYADI P.O., KALKULAM TALUK, KANYAKUMARI TALUK TAMIL NADU. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23469 of 2008 ------------------------------- Dated this the 5th August, 2008. J U D G M E N T This petition is filed under Article 227 of Constitution of India challenging the execution proceedings initiated by the respondent, decree holder, evidenced by Ext.P4 show cause notice issued by the executing court under Rule 37 of Order XXI of Code of Civil Procedure. The case of the petitioner is that challenging the decree, a second appeal is filed before the High Court of Madras and as an appeal is pending, executing court should not have proceeded with the execution. 2. The learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel is that Ext.P1 order passed by Madras High Court in the second appeal directs the petitioner to deposit Rs.25,000/= and evidenced by Ext.P2 receipt, the amount was deposited, and in such circumstances, executing court should have stayed the execution proceedings. W.P.(C) No.23469 of 2008 2 4. On hearing the learned counsel, I do not find any illegality or irregularity in executing court proceeding with the execution. Sub Rule 1 of Rule 5 of Order XLI of Code of Civil Procedure specifically provide that pendency of an appeal will not operate as an order of stay of execution. Therefore, the fact that a second appeal is pending by itself is not a ground to stay the execution proceedings. If petitioner is seeking an order of stay of execution, he has to approach the Madras High Court where the second appeal is pending, and get an order of execution of the decree, as provided under Rule 5 of Order XLI of Code of Civil Procedure. Writ petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.