Krishna 14 August 2020

Civil suit

Dear Sir / Madam, We are the respondents at Civil Suit at high Court. In district court we have won the partition suit (50 / 50). The opposite party has filed appeal in high court during July 2016 and the case was registered in December 2017. In-between Hon. Judge Called both parties and checked whether compromise is possible and referred to two senior lawyers for mediation in March 2018. Bit nothing happened after that in high Court. Neither mediation nor hearing. Meanwhile we have filed for EP in district court and the same was registered in Nov 2018 (as there is no stay till date). But on each month hearing, the same is postponed as Awaiting Mediation Reports from high Court. Kindly advice how to proceed in high Court as the case is not taken up for past 3 yrs. Since EP is for the district court judgement, why the same is also not proceeding. Kindly advice.

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7 Replies

{Balu manikantan} SUBRAMANYAM (Practising Advocate) 14 August 2020

AS there is no stay on the trial court judgement, you can proceed with the EP . As the Hon'ble High court has ordered for the mediation may be the EP Court is going slow. So Escalate to the EP court to proceed with the EP as there is no stay on the judgment.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108) 15 August 2020

1. IF appeal against lower court order is filed in High Court, THEN "ALL" lower court proceedings shall remain suspended, till HC's final order. In such scenario, EP proceedings becomes legally infructuous.

Keep Smiling .... Hemant Agarwal
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Shashi Dhara 15 August 2020

Insist your advo ate to dispose appeal as soon as possible in high court .

Dr J C Vashista (Advocate) 15 August 2020

Although appeal has been admitted by High Court after failed mediation but High Court has not stayed the judgement/ order and decree passed by the Trial /District Court.in your favour.

Obtain all order sheets of the appeal and submit the same before Executing Court with an application to proceed further.

I respectfully disagree and differ with the opinion and advise of expert Mr. Hemant Agarwal since impugned order can not be presumed to be suspended automatically i.e., as and when an appeal is filed / admitted..

{Balu manikantan} SUBRAMANYAM (Practising Advocate) 15 August 2020

I agree with Dr J C Vashista sir.

Mere Filing an appeal will not suspend the Trial court judgement.

The EP court is not under an obligation to stop the proceedings till the appeal is disposed off.

But when there is no stay, the Petitioner filing EP need not produce any documents from the High court. It is the respondent in the EP to produce documents if there is a stay.

P. Venu (Advocate) 16 August 2020

Yes, mere filing of an appeal in the high Court, in the absence of any stay granted, need not hold up the proceedings in the EP. However, for all practical purposes, Execution Court is bound to go slow, esp. when attempts towards a mediated settlement is taking place at the instance of the High Court.