IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2642 of 2007(M)
1. K.M.SADASIVAN,
... Petitioner
2. BINDU W/O.SADASIVAN,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. K.V.SOMASEKHARAN,
For Petitioner :SRI,MATHEW PHILIP
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C) .NO.2642 OF 2007
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Dated 23rd January 2007
J U D G M E N T
Petitioners are defendants in O.S.327/97 on
the file of Munsiff court, Kottayam. As against the
decree petitioners filed A.S.99/2000. According to
petitioners along with the appeal, application under
Order XLI Rule 5 (2) of Code of Civil Procedure was
filed for staying the execution of the decree and
under Ext.P5 order execution of the decree was stayed.
Subsequently, appeal was dismissed for default. It was
restored later. Case of petitioners is that while
restoring the appeal, I.A.1607/00, whereunder
execution of the decree was originally stayed by
Ext.P5, was not restored. Consequently, executing
court is proceeding with execution petition. It is
contended that even though petitioner filed
applications for stay before the executing court and
appellate court, no order of stay was granted. This
petition is field under Article 227 of Constitution of
India for a direction to the executing court to stay
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further proceedings in the execution petition.
2. Learned counsel appearing for petitioners was
heard.
3. Ext.P5 order dated 27/6/2000 in I.A.1607/00,
shows that interim stay of execution of the decree was
granted in A.S.99/00. A.S.99/00 was subsequently
dismissed for default on 23/1/2006. According to
petitioners, it was restored on 8/8/2006. Case of
petitioners is that while restoring the appeal,
I.A.1607/00 was not restored. From Ext.P5 it is not
possible to say what happened to I.A.1607/00,
subsequent to 27/6/2000 and whether the order of
interim stay granted on 27.6.2000 continued till the
appeal was dismissed for default on 23/1/2006. In such
circumstance, it cannot be presumed that order of stay
granted under Ext.P5 was prevailing when the appeal was
dismissed for default on 23/1/2006.
4. Ordinarily, when a suit or appeal was
dismissed for default and was restored subsequently,
the pending applications shall automatically stand
restored, unless court specifically otherwise provides.
But if on the dismissal of appeal an order of stay was
vacated and before restoration of the appeal decree
was executed, it cannot be said that by restoration of
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the appeal, order of stay would revive and would
negative the execution proceedings. In such
circumstance, on restoration of the appeal, it cannot
be said that for stay of execution of decree
application shall be automatically restored or the
order of stay which has been prevailing at the time
when appeal was dismissed for default is to be revived.
According to learned counsel appearing for petitioners
an application before the appellate court was filed
for stay and it stands posted to 8/2/2007. In such
circumstance, learned Sub Judge is directed to pass
appropriate order in Ext.P9 application, as
expeditiously as possible and at any rate on the next
posting date. Executing court is directed to stay
execution till 8/2/2007. While deciding the application
for stay, the appellate court must bear in mind that
unless compelling reasons are there, the application
which was pending and dismissed, along with the appeal
for default, shall be restored on restoration of the
appeal.
Writ petition is disposed accordingly.
M.SASIDHARAN NAMBIAR,
JUDGE.
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uj.