IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.9.2008 CORAM; THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(NPD)No.3231 Of 2007 and M.P.No.1 of 2007 1.T.S.Perumal 2.S.Dayalan 3.S.Ekambaram 4.S.Sekar 5.S.Sadagopan 6.K.Kumar ..Petitioners vs T.G.Thulasi ..Respondent Civil Revision Petition is filed against the judgment and decree dated 18.9.2007 made in Unnumbered I.A.in C.R.No.3710 of 2007 in O.S.No.97 of 2004 on the file of the learned District Munsif Court, Chengalpattu. for petitioners : Mr.T.R.Rajaraman for respondent : Mr.D.Murthy ........ ORDER
The petitioners are defendants in O.S.No.97/2004 on the file of District Munsif Court, Chengalpattu. They were set exparte on 2.1.2004 and they filed application to set aside the exparte decree along with an application under section 5 of the Limitation Act to condone the delay. The respondent/plaintiff remained exparte in the petition under Section 5 of the Limitation Act and thereby filed an application to set aside the exparte order under Order IX Rule 7 C.P.C. The abovesaid applications are pending before that Court. In the meanwhile, the respondent/plaintiff filed E.P., for transmission of the decree from the District Munsif Court, Chengalpattu to District Munsif Court, Vandavasi in E.P.No.5/2006 and the said petition is also pending before that Court.
2. The petitioners filed petition under Section 94(e) of C.P.C. for the relief of stay of operation of the decree passed in O.S.No.97/2004. It was not numbered. But it was given serial number C.R.No.3710/2007.
3. The learned District Munsif rejected the stay application by observing that the District Munsif cannot stay the operation of the decree under Section 94(e) C.P.C., and the petitioners can very well work out their remedy under Order XXI Rule 26 C.P.C., before the Executing Court stating the facts of pendency of petition for setting aside the exparte decree pending before the District Munsif Court, Chengalpattu.
4. Section 94(e) of the C.P.C. would read as follows:
“94.Supplemental proceedings-In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-
(a)to (d) omitted
(e)make such other interlocutory orders as may appear to the Court to be just and convenient”.
Order 26 Rule 1 C.P.C. is extracted below:
“26.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 the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto”.
As far as section 94(3) is concerned it is the general power conferred to the Court which passed the decree. Section 94 could be invoked by the Court in its inherent power under Section 151 C.P.C. The source of power of the Court to grant interim relief is under section 94. The exercise of that power can only be done if the circumstances of the case fall under the rules. The inherent powers of the Court under Section 151 C.P.C., are not restricted under Section 94 and hence the Court may pass any interim order if it deems fit in the absence of inherent powers for passing of any such interim order.
5. It is stated in the impugned order that the E.P. for transmission of decree is pending before the District Munsif Court, Chengalpattu. The order was passed on 18.9.2007 about a year back. Now we do not know whether the decree has been transmitted or not. In case if the decree has not been transferred and being retained in the said Court, it is for the District Munsif Court, Chengalpattu to stay further proceedings till the disposal of the petition under Order IX Rule 13 C.P.C., and the disposal of the said petition shall be as expeditiously as possible.
6. In case if the decree was transmitted to the Court at Vandavasi then Order XXI Rule 29 C.P.C., would come to play and the transferee Court may stay the execution of the decree if it deems fit. Nothing would restrict the powers conferred on the Court under Section 94(e) and Order XXI Rule 29 C.P.C., if the prayer is reasonable one.
7. It is concluded that if the decree is kept without transmission in the District Munsif Court, Chengalpattu, the said Court may deal with the said application according to its discretion. If the decree was transmitted to the Court at Vandavasi, the said Court may act according to Order XXI Rule 26 C.P.C., upon a petition filed by these petitioners, if the reasons assigned therein were reasonable.
8. With the above observation, this Civil Revision Petition is disposed of. No costs. Consequently, M.P.No.1/2007 is also disposed of.
sal
To
1.The District Munsif Court, Chengalpattu.
2.The District Munsif Court,
Vandavasi