@JUDGMENTTAG-ORDER
M.R. Hariharan Nair, J.@mdashThe 3rd Judgment debtor in O.S. 146 of 1993 of the Munsiff''s Court, Thirvalla is the revision petitioner. The challenge is with regard to the dismissal of his application for stay of execution proceedings brought under O.21 R.26 of CPC.
2. I have heard both sides. The learned counsel submits that under the preliminary decree passed in the case the plaintiffs are entitled to one half share and that the remaining one half is due for the defendants 1 to 4 in equal shares. The Commissioner deputed in the case filed a commission report which was sought to be set aside. Defendants 2 and 3 had actually filed an objection, but ignoring the same the trial court proceeded to pass a final decree as though the revision petitioner was a consenting party to that procedure. It is also stated that an appeal has been presented before competent court challenging the final decree; and that the delay petition filed in that petition is posted to 22.9.1999. In the circumstances it is argued that the court below should have invoked its power under O.21 R.26 to stay the execution proceedings so that the revision petitioner could get appropriate stay order from the appellate court as and when the delay petition was disposed of.
3. According to the learned counsel for the respondent the appeal itself is not maintainable in so far as the final judgment arose from certain concession made by the learned counsel for the defendants 2 and 3 when the matter came up for hearing in the Court below. It is also stated that the power under O.21 R.26 cannot be invoked once the appeal is presented. I have considered the said submissions. The question of maintainability of the appeal can be pursued by the present respondents as and when the delay is condoned. There appears to be no prohibition against grant of a stay invoking powers under O.21 R.26 in the meantime. Technically speaking, there is no appeal before the appellate court as the delay has not been condoned. Nevertheless, if interest of justice requires, the execution proceedings can be kept in abeyance until the stay petition filed in the appeal is disposed of Taking into account all the circumstances the impugned order is set aside and a stay of the execution proceedings is ordered for a period of two months from this date.
