The revision petitioner/petitioner/defendant has filed this civil revision petition as against the order in E.A.No. --/2004 in O.E.P.No.78 of 2004 in Arni Sub Court O.S.No.98 of 2002 dated 20.12.2004 passed by the Learned District Munsif Polur, Tituvannamalai, in rejecting the stay application filed by the revision petition under Section 151 of the Civil Procedure Code pending disposal of Section 5 application of Limitation Act and the application filed under Order 9, Rule 13 of Civil Procedure Code.
2. The Learned District Munsif while passing orders in E.A.No.-- of 2004 in O.E.P.No.78 of 2004 dated 20.12.2004 has inter alia held that 'the suit has been decreed by the Sub-Court Arni and this Court is not only a transferee Court and therefore has no power to stay the execution proceedings and at the most the transferee court can stay the execution only for a reasonable time under Order 21, Rule 26 to enable the judgment debtor to apply to the transferor Court to grant the orders to stay the execution in the transferee Court. But it is not so in this case. What cannot be done under a specific provision cannot also be done under Section 151 of Civil Procedure Code' and resultantly, rejected the application.
3. The learned counsel for the revision petitioner submits that the Court should have seen that the transferee Court as well as the transferor Court is possessed of jurisdiction under Order 21, Rule 26 of Civil Procedure Code and omission adhere to the ingredients of Order 21,Rule 26 of Civil Procedure Code has resulted in an erroneous order being passed by the Executing Court which has to be set aside by this Court sitting in revision in the interest of justice.
4. It is seen from the petition and order in E.A.No.-- of 2004 at page 7 of the type set that the said E.A.No-- of 2004 has been directed to be called in open Court on 05.11.2004 by means of an order dated 04.11.2004 and the matter has been adjourned from 05.11.2004 to 29.11.2004 and on 16.12.2004 the matter has been heard and posted for orders on 20.12.2004 and finally on 20.12.2004 the unnumbered E.A.No.-- of 2004 has been rejected by the Executing Court.
5. It is to be noted that Order 21, Rule 26, applies to the Court to which a decree has been transferred for execution and not to the Court which passed the decree and sent it for execution. It empowers the transferee Court upon a sufficient cause shown to stay the execution of the decree so transferred to do, for execution for a reasonable time and for the purposes set out in Sub Rule (1), Rule 26(1) only relates to granting of limited stay of execution by Executing Court for only a specific purpose has to enable the judgment debtor to apply for a stay order from the Appellate Court or from the trial Court which passed the decree for suitable orders.
6. As a matter of fact, Section 42 of the Civil Procedure Code enjoins that the transferee Court having all the powers of the Court which passed the decree can sell properties out side its territorial jurisdiction under circumstance in which the trasferee Court could do so as per the decision Jonalalgadda Setharamayya v. Kaja Sivaramakrishna Rao AIR 1944 Mad 145.
7. In fact, the Court which passed the decree has powers under Order 21, Rule 26 to make an order for stay of execution. It may withdraw execution by calling back the decree or it may make an order for simultaneous execution by another Court or it may make an order for rateable distribution. In a similar way the trasferee Court can exercise all the powers of the Court which passes the decree in the considered opinion of this Court.
8. However, after going through the order passed by the Executing Court in unnumbered E.A.No.-- of 2004 dated 20.12.2004 this Court is of the considered view that in the interest of justice the E.A.No.-- of 2004 filed by the revision petitioner/defendant needs to be taken on file of the Executing Court and after numbering the E.A.No-- of 2004 shall order notice to the respondent/plaintiff as the case may be and after providing due opportunities to both the parties, and counter if any is filed is to dispose of the said Execution Application after hearing, within a period of two weeks from the date of receipt of copy of this order and to report compliance to this Court.
9. In fine, civil revision petition is disposed of leaving the parties to bear there own costs. Consequently, C.M.P.No.8702 of 2005 is closed.
prm To The District Munsif of Polur, Tituvannamalai