Notice under xxi rule 22 served for exitcution
deepak
(Querist) 22 December 2011
This query is : Resolved
"SUIT PREMISES IS SHOP" High court at bombay challenging the judgment and decree dated 20/2/2010 passed by the honble city civil court,appeal is admitted dated26/4/2010,Appeal had filed a civil application praying for stay of the said decree & saying iwill pay rs.5000/- per.mouth without prejudice to the rights.At the time of first hearing Hon'ble judge order to clear the arrears within aperiod of four weeks.After second hearing Hon'ble judge order to pay sum of Rs.5000/- per weeks only for two weeks till then.After that case is pending in the high court. MY Judgement date 20/2/2010."Suit stand decree with cost ,defendent are hereby restrained by order of injunction from working & conducting saloon business in the suit shop". first appeal in highcourt is pending for stay on decree.No stay order is given still today I have served NOTICE under rules 22 for execution within two year. opposite advocate argues saying that "if appeal is pending you cannot execute the decree there is recent judgement higher court,I have asked warrant of attachment under order xxi rule 32(1) of the code if civil procedure,1908.WEATHER I AM ON RIGHT TRACK OR NOT?I THINK EVERTHING IS MY FAVOR STILL IT TAKE TIME FOR ORDER. WHAT TO DO?
ajay sethi
(Expert) 22 December 2011
If court is satisfied that appeal is pending then no purpose in keeping the EP pending. EP
can be dismissed with liberty to file fresh EP after disposal of appeal. The limitation will
be saved since the decree will merge with the appellate court decree and the time will run
afresh after the disposal of the appeal.
Raj Kumar Makkad
(Expert) 23 December 2011
filing of appeal ipso-facto do not give a right in favour of the JD to deem the execution as stayed because no stay order has been passed by appellate court without which execution petition cannot be stayed and there is no alleged law as is being claimed by the counsel of JD.
prabhakar singh
(Expert) 23 December 2011
When there is no stay granted in appeal the proceeding in execution shall proceed with out any interference.The other side advocate does not know the law.
