G. Arumugam vs P. Jayaraman

S. Tamilvanan, J.—This Civil Revision Petition has been preferred u/s 15 of the CPC against the Order dated 2.2.2012 made in E.A. No. 143 of 2011 in E.P. No. 69 of 2011 in O.S. No. 146 of 2001 on the file of the District Munsif Court at Jayankondam. The Petitioner herein was the Defendant/Decree-holder in the Suit in O.S. No. 145 of 2001 and the Petition was filed before the Court below under Order 21, Rule 26 of the CPC (hereinafter referred to as "the Code"), whereby the Petitioner sought an Order to stay the Execution proceeding. Execution Application in E.A. No. 143 of 2011 in E.P. No. 69 of 2011 in O.S. No. 146 of 2001 was filed by the Respondent herein before the District Munsif Court, Jayankondam seeking an Order of Stay of the Execution proceeding before the Court below on the ground that he had preferred Second Appeal in S.A. No. 3861 of 2009. Though the Second Appeal was dismissed on 30.3.2011 by this Court, as there was no representation for the Respondent herein who was the Appellant in the said Second Appeal. Subsequently, the Respondent herein filed M.P. No. 1 of 2011 seeking order to set aside the ex parte Order of dismissal of the Second Appeal of this Court. On the aforesaid circumstances, the Respondent herein filed the Application in E.A. No. 143 of 2011 before the Court below alleging that the Revision Petitioner/Decree-holder is taking steps to evict the Respondent herein by executing the Decree and on that ground, the Respondent herein filed the aforesaid E.A. No. 143 of 2011 seeking stay of the Execution Petition proceeding under Order 21, Rule 26 of the Code. In the Counter, the Revision Petition herein had raised objection that the aforesaid M.P. No. 1 of 2011 was filed by the Respondent herein before this Court.

It was argued by the learned Counsel for the Revision Petitioner that after the dismissal of the Second Appeal, the Respondent/Judgment-debtor is not entitled to seek an Order of Stay under Order 21, Rule 26 of the CPC before the Court below. However, without getting any stay from this Court, the Respondent herein filed a Stay Petition against the E.P. proceeding before the District Munsif Court, Jayankondam under Order 21, Rule 26 of the Code and got an Order, which is against law.

It is seen from the impugned Order that the Revision Petitioner, who was the Respondent before the Execution Court in E.A. No. 143 of 2011 has stated that he is a Senior Citizen aged about 84 years. It is seen that the Respondent herein who suffered a Decree is protracting the proceeding by getting stay before the District Munsif Court after the dismissal of the Second Appeal by this Court, without any justification, the District Munsif, Jayankondam, by his Order dated 2.2.2012 passed in E.A. No. 143 of 2011 has granted stay of the E.P. proceedings till the disposal of the Miscellaneous Petition in M.P. No. 1 of 2011 pending on the file of the High Court.

Mr. N.C. Siddharth, learned Counsel appearing for the Revision Petitioner submitted that the Court below has passed an erroneous Order by granting stay under Order 21, Rule 26 of the Code, in spite of the fact that the Second Appeal preferred by the Respondent herein was dismissed for default by this Court. It is an admitted fact that the Second Appeal preferred in S.A. No. 386 of 2009 by the Respondent/Judgment-debtor was dismissed on 30.3.2011 by this Court as per the certified copy of the impugned Order. However, the Respondent herein has stated before the Court below that he had filed Miscellaneous Petition in M.P. No. 1 of 2011 before this Court to restore the Second Appeal. Since the Second Appeal was dismissed for default, the Respondent herein could have obtained stay only from this Court, and he has no right to file E.A. No. 143 of 2011 before the District Munsif Court, Jayankondam under Order 21, Rule 26 of the Code seeking stay after the dismissal of the Second Appeal and the impugned Order is an abuse of process of law.

The Hon''ble Supreme Court in the decision in Inderchand Jain (D) through L.Rs. Vs. Motilal (D) through L.Rs., , has held as follows:

It is beyond any doubt or dispute that the Review Court does not sit in Appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a Judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.

Review is not Appeal in disguise. In Lily Thomas v. Union of India, this Court held: (SCC P. 251, para 56)

It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power, the review cannot be treated like an Appeal in disguise.

It has been made clear by the Hon''ble Supreme Court in the decision referred to above that the review Court does not sit in Appeal over its own order since rehearing of the matter is impermissible in law. Once the Judgment is signed or pronounced, the Court should not then alter, reopen the same and alter the order. It is not the power of the Court below for exercising any inherent jurisdiction. The Court which has passed the Order by way of review is empowered to make any amendment if there is any error apparent on the face of record, or clerical or arithmetic error as per procedure known to law after providing reasonable opportunity to both parties. However, the Court, which passed the Order cannot once again re-open or re-decide the same as the Court becomes functus officio. In Rajendra Kumar v. Rambai, 2007 (15) SCC 513, the Hon''ble Apex Court has held as follows:

The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a Review Petition is that the Order, review of which is sought, suffers from any error apparent on the face of the Order and permitting the Order to stand will lead to failure of justice. In the absence of any such error, finality attached to the Judgment/Order cannot be disturbed.

Therefore, it is crystal clear that the scope of review is limited to the extent of correcting arithmetic or clerical error or any error on the face of record, however by way of review, the Court cannot decide its own Order.

In Girdharilal Chandak and Bros (HUF) Vs. S. Mehdi Ispahani, Ali Ispahani and S. Mohamed Ispahani, , this Court (V. Ramasubramanian, J.) has held that Order 41, Rule 5(1), C.P.C., makes it clear that preferring an Appeal shall not operate as a stay of the proceedings under a Degree or Order appealed, only the Appellate Court is empowered to pass the Order. Hence, the Execution of a Decree shall not be stayed merely by reason of an Appeal having been preferred against the Judgment and Decree as per Order 41, Rule 5 of the Code. In the absence of stay of further proceedings relating to a Decree or Decretal Order of the Appellate Court, the execution of Decree cannot be stayed by the Executing Court.

In Dakshinamurthy Vs. Raman and Another, , this Court (Mr. Pratap Singh, J.) has held as follows:

I find that the submission of the learned Counsel for the Petitioner is well founded. It is a known principle of law that mere filing of the Appeal will not amount to stay of the operation of the Decree of the lower Courts. Until the Decrees of the Courts below are set aside, and the Decree-holder is entitled to claim the benefits of the same and unless there was a stay by the Appellate Court. The Court below is wrong in dismissing the Petition filed in E.P. No. 485 of 1986 on the ground that the Second Appeal is pending. Hence, the matter is to be remitted back to the Court below for proceeding with the E.P., in accordance with law.

In the instant case, stay has been granted by the District Munsif Court, Jayankondam, as Executing Court, under Order 21, Rule 26 of the Code. It is relevant to analyze the scope of the said provision of law. Order 21, Rule 26 of the Code, which reads as follows:

When Court may stay execution:.--(1) The Court, to which a Decree has been sent for execution, shall, upon sufficient cause being shown, stay the execution of such Decree for a 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 the execution thereof, for an Order to stay execution or for any other Order relating to Decree or execution which might have been made by such Court of first instance or Appellate Court, if execution has been issued thereby, or if Application for execution had been made thereto.

(2) Where the property or person of the Judgment-debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the Application.

(3) Power to require security from, or impose conditions upon Judgment-debtor: Before making an Order to stay execution or for the restitution of property or the discharge of the Judgment-debtor, [the Court shall require] such security from, or impose such conditions upon the Judgment-debtor as it thinks fit.

The impugned Order does not come under the purview of Order 21, Rule 25 of the Code of Civil Procedure, in view of the decision rendered by the First Appellate Court and the dismissal of the Second Appeal, in respect of granting any stay of Execution proceeding. In S.V.M. Nagavairavasundaram Vs. S. Bageerathan, N. Subbarayalu , this Court (Mr. Misra, J.), has held as follows:

.... Rule 5(2) of Order 41 and Rule 26 of Order 21 aforequoted in the CPC are such provisions which provide forums to the Judgment-debtor for seeking a stay of the execution of the Decree for a reasonable time to enable him to apply to the Appellate Court/Revisional Court for a stay of the execution of the Decree. He, of course, has to show sufficient cause and once such cause is shown, the Court to which the Decree is sent for execution or the Court that passed the Decree shall be obliged to stay for a reasonable time the Execution proceedings.

In K. Lakshmiammal v. D.S. Nagalakshmi, 2012 (3) MWN (Civil) 66, this Court (Mr. K. Ravichandra Baabu, J.) has held that stay of Execution proceeding by the Executing Court could be granted for a limited purpose so as to enable the Judgment-debtor to apply for stay before the appropriate Court or from the Court, which passed the Order. The purpose of the provision is only to enable the Judgment-debtor to approach the Appellate Court, as per the procedure and not for abusing the process of law.

It is a well settled that the Executing Court is empowered in granting stay under Order 21, Rule 26 of the Code so as to meet the ends of justice, and not for the abuse of process of law and the Court. After getting the Decree, the Decree-holder is entitled to file Execution Petition in order to reap the benefit of the Decree. However, when sufficient causes are shown by the Judgment-debtor, the Judgment-debtor to get appropriate Orders from the proper Court. The proper Court is only the Appellate Court and, in case of ex parte Decree, the Court which has passed the Decree. When the matter has been seized of by the Appellate Court, the Judgment-debtor should approach only the Appellate Court for seeking stay and not the Trial Court or the Executing Court. In the instant case, admittedly, the Respondent in the Revision Petition had suffered a Decree and preferred the Second Appeal against the judgment and Decree confirmed by the First Appellate Court, and that was dismissed for default, as there was no representation for the Respondent herein who was the Appellant before this Court in the Second Appeal. Hence, he filed Miscellaneous Petition in M.P. No. 1 of 2011, before this Court seeking an Order to set aside the Order of dismissal in the Second Appeal and to restore the Second Appeal. After preferring Second Appeal, the matter has been seized of by this Court and subsequently, the Second Appeal itself was dismissed.

On the aforesaid circumstances, the Executing Court, District Munsif, Jayankondam, only by non-application of mind has erroneously granted stay of the Execution proceeding without jurisdiction, after the dismissal of Second Appeal. The Respondent herein could have filed Stay Application against the Execution proceeding. Since the Second Appeal pending before this Court was dismissed for default. The Respondent/Judgment-debtor is not entitled to invoke Order 21, Rule 26 of CPC seeking stay after the dismissal of the Second Appeal. The Executing Court has no authority or jurisdiction to grant any stay after the dismissal of the Second Appeal by this Court. The decisions cited by the learned Counsel for the Respondent referred to above, are no way applicable to the facts and circumstances of this Revision Petition. Order 21, Rule 26 of the Code of Civil Procedure, is only to meet the ends of justice and not to abuse anything to stay any Execution Petition proceeding against law. In the instant case, the Execution Petition was filed by the Decree-holder, a senior citizen aged more than 84 years. As the Second Appeal preferred by Respondent/Judgment-debtor was dismissed, he could have filed a Petition seeking stay only before this Court. He cannot approach the District Munsif Court, Jayankondam, against the Execution proceeding, as the Decree-holder is entitled to execute the Decree. It is seen that the impugned Order of stay has been granted by the Court below after the dismissal of the Second Appeal. Hence, the impugned Order is unsustainable in law and liable to be set aside. On the aforesaid circumstances, the Revision Petition is allowed and the impugned Order dated 2.2.2012 passed by the Court below is set aside and the Court below is directed to pass appropriate Orders in the Execution Petition within one month from the date of receipt of a copy of this Order as per law. No order as to costs. Consequently, connected Miscellaneous Petition is closed.