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Judgment
Honourable Mr. Justice R.S. Ramanathan
The appellants in A.S.No. 20 of 2009 on the file of the Sub Court, Trivellore, are the revision petitioners. The respondents filed O.S.No. 248 of
2002 on the file of the District Munsif Court, Trivellore, seeking for declaration, injunction and for removal of the hut put up by the revision
petitioners in the suit property, and the suit was decreed and three months'' time was given to the revision petitioners to remove the encroachment.
Against the judgment and decree, the revision petitioners filed A.S.No. 20 of 2009 on the file of the Sub Court, Trivellore and the above appeal
is pending for disposal. In the meanwhile, the respondents/decree holders have filed E.P.No. 25 of 2010 on the file of the District Munsif Court,
Trivellore to execute the decree and in that Execution Petition, the revision petitioners have filed E.A.No. 74 of 2011 for stay of the decree and
that application was dismissed. Aggrieved by the same, this revision has been preferred by the revision petitioners.
It is submitted by the learned counsel appearing for the revision petitioners, that in the appeal in A.S.No. 20 of 2009 filed by them, they have
not applied for stay along with the appeal and only in I.A.No. 12 of 2012, they filed the application for stay. It is further submitted by the learned
counsel for the revision petitioners that the arguments were heard in A.S.No. 20 of 2009 and thereafter, the revision petitioners have filed I.A.No.
62 of 2011 to reopen the appeal for advancing further arguments and that application was allowed and the appeal is posted to 29.02.2012 for
arguments and the revision petitioners are prepared to argue the case on 29.02.2012. It is, therefore, submitted that till the disposal of the appeal in
A.S.No. 20 of 2009, there shall be an order of stay of execution of decree.
Mr. M.R. Kapali, learned counsel appearing for the first respondent, submitted that he has appeared for the respondents before the first
Appellate Court and he takes notice for the other respondents and submitted that deliberately, the revision petitioners are taking time and without
filing the application for stay, they attempted to stay the execution proceedings and that was rightly dismissed by the Court below and as per the
decree, the revision petitioners have not removed the bricks in the suit property and unless they show some bona fide in removing the bricks, they
should not be shown any indulgence by this Court.
According to me, the lower Court has rightly dismissed the application in E.A.No. 74 of 2011 in E.P.No. 25 of 2010 in O.S.No. 248 of 2002.
Admittedly, the revision petitioners filed the appeal in A.S.No. 20 of 2009 and after the filing of the appeal, they will have to move only the first
Appellant Court for stay. Therefore, after filing of the appeal, it is not open to the Judgment Debtor to approach the Executing Court and apply for
stay and that was properly appreciated and the stay application was rightly dismissed by the Court below. Nevertheless, having regard to the fact
that the arguments in A.S.No. 20 of 2009 were already heard and application in I.A.No. 62 of 2011 was allowed and the appeal is posted to
29.02.2012 for arguments of the revision petitioners, I am inclined to give the following directions:
i. The first Appellate Court, namely, the Sub Court, Trivellore, is directed to dispose of A.S.No. 20 of 2009 on or before 15.03.2012 and the
revision petitioners and the respondents are directed to co-operate with the Court below by submitting the arguments on 29.02.2012.
ii. There shall be stay of the decree passed in O.S.No. 248 of 2002 till 15.03.2012, and if the judgment is not rendered on 15.03.2012, it is open
to the decree holder to execute the decree.
Accordingly, this Civil Revision Petition is dismissed with the above observations. Consequently, connected M.P. is closed. No costs.