IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION No.44513/2018(GM-CPC) BETWEEN:
A. NAGARAJ S/O. ANJINAPPA AGED ABOUT 61 YEARS R/AT NO.132, SHRIRAM TEMPLE ROAD KADUGODI BENGALURU – 560 067 ... PETITIONER (BY SRI VISHWANATHA K., ADVOCATE) AND:
L. SACHIDANANDA S/O. LAKSMAN AGED ABOUT 41 YEARS R/AT NO.137/1, 6TH MAIN 5TH CROSS, NGEF LAYOUT SANJAY NAGAR BENGALURU – 560 094 ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 18.07.2018 PASSED ON I.A.NO.1 UNDER ORDER 21 RULE 26 READ WITH SECTION 151 OF CIVIL PROCEDURE CODE IN EXECUTION NO.5/2015 ON THE FILE OF I ADDITIONAL CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU VIDE ANNEXURE-‘A’ AND CONSEQUENTLY ALLOW THE ABOVE SAID APPLICATION AND ETC.
THIS WRIT PETITION COMING ON FOR ‘PRELIMINARY HEARING’ THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner being the Judgment Debtor in Execution Petition No.5/2015 filed by the respondent herein is invoking the writ jurisdiction of this Court for assailing the order dated 18.07.2018, a copy thereof is at Annexure-‘A’ whereby the learned I Additional Civil Judge, Bengaluru Rural District, has rejected his application filed under Order XXI Rule 26 read with Section 151 of Code of Civil Procedure, 1908 for stay of the execution proceedings.
2. Learned counsel for the petitioner argues that the impugned order has a lacunae on its face which warrants indulgence of this Court in as much as the Court below having held that the petitioner has already preferred the appeal R.A.No.62/2015 against the decree in execution has refused to start the execution. He further submits that presently the Court where the appeal is pending, being vacant, the same is being processed by the itinerary Judge and therefore, the execution proceedings should be stayed, till after his Regular Appeal is taken up by the appellate judge.
3. I have heard the learned counsel for the petitioner and perused the petition papers.
4. The suit is decreed on 28.07.2012; admittedly, an appeal has been preferred against the judgment & decree vide R.A.No.62/2015, albeit with delay; once the decree in execution is put in appeal, the settled legal position is that there is no automatic suspension of its enforceability; once the said decree is impugned in appeal, the prayer for stay of the same in said appeal is the right remedy, and not the prayer for stay of the execution proceedings; thus, the impugned order cannot be faltered.
In the above circumstances, the petition is disposed off reserving liberty to the petitioner to approach the First Appellate Court in R.A.No.62/2015 for seeking stay of the decree.
The observations made hereinabove being confined to the disposal of this writ petition, shall not influence the hearing of Regular Appeal.
Sd/- JUDGE KLV