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Priyanshu Mehta (BUSINESS)     24 March 2024

Can decree be stayed with reason of appeal is pending before the high court

Dear Experts,

The trial court has dismissed the civil suit of plaintiff due to unable to prove his case and passed the counter claim of defendant and also passed the judgement and decree in favor of defendant. By aggrieved with the trial court decree judgement, the plaintiff filled first appeal before the district court which was also dismissed and decided in favor of defendant with the condition of 30 days of stay proceedings to allow the plaintiff to challenge this first appeal order before the HIGH COURT if plaintiff is aggrieved by this order.

After the dismissal of first appeal, the defendant has filled caveat application before the High Court and after expiry of caveat limit 90 days  the execution petition was filled by the defendant before the hon'ble court. During the caveat application no notice was received by the defendant from High Court or from plaintiff against the second appeal. Hence, by not received any notice the defendant assumed that plaintiff has not filled any second appeal and filled execution petition.

After the execution appellation the plaintiff appear with the copy of online status of second appeal pending since November-2023 and the court has given the long date to plaintiff against this copy. Since then the court is not executing the defendant's execution application and on every date the defendant is explained the same reason that the plaintiff has filled 2nd appeal before the high court and until the appeal is pending we can not execute the judgement decree of defendant.

The execution petition is filled for removing stones, bricks, sand which were kept by plaintiff on defendant's property and permanently restraining the plaintiff to create any hindrances to defendant for accessing his property.   

The second appeal has admission pending stage status and till date the second appeal is not admitted. Now, I have following queries in this regard.

1. Can the sub-ordinate court start proceedings the execution petition of defendant even if the second appeal is pending before the High Court ?

2.  If the court is not proceedings the execution petition of defendant, then which application has to be filled before the court for proceedings with execution petition ?

3.  Can the defendant take any objection in writing before the court be mentioning supreme court judgement where mentioned that execution petition has to be proceed within six months from the date of filling.

Experts please guide about this.

Thanks & Regards

Priyanshu Mehta



 3 Replies

T. Kalaiselvan, Advocate (Advocate)     24 March 2024

1. If there's no restriction or stay order by appellate court, the execution court can very well proceed with the execution proceedings.

2. You can file a memo insisting court to proceed with the execution proceedings expeditiously especially when the appeal has not yet been admitted.

3. Yes, he can file the citation to support his petition for expediting the proceedings.

Advocate Bhartesh goyal (advocate)     24 March 2024

( 1 ) Yes, in lack of stay order executing court can proceed for execution of decree.

( 2 ) File an  application and request court to proceed further.

( 3 ) No one can prevent to cite the judgments. 

Dr. J C Vashista (Advocate )     25 March 2024

Very well analysed, opined and advised by experts, I agree with them.

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