Madras High CourtCRP(MD)/1642/2016disposed of

T.Vijayalakshmi, v. V.Iyyappan,

2016-08-24Honourable Mr Justice K. Kalyanasundaram2 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.08.2016

CORAM:

THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM C.R.P(MD)No.1642 of 2016(NPD) and C.M.P.(MD).No.8002 of 2016 1.T.Vijayalakshmi

2. S.Thangaraja .. Petitioners/Respondents/Defendants Vs.

V.Iyyappan .. Respondent/Petitioner/Plaintiff Prayer : This Civil Revision Petition is filed under Section 115 of CPC, to call for the records pertaining to the order passed in E.P.No.118 of 2014 in O.S.No.285 of 2010 on the file of the IAdditional Subordinate Court, Nagercoil and set aside the same. For Petitioners : Mr.T.Lajapathi Roy

ORDER

This revision arises out of the order passed by the I-Additional Sub Judge, Nagercoil in E.P.No.118 of 2004 in O.S.No.285 of 2010.

2. The respondent, as plaintiff filed the suit in O.S.No.285 of 2010, against the petitioner for declaration and recovery of possession.

3. After contest, the suit came to be decreed on 28.04.2014. Based on the decree, the plaintiff filed E.P.No.118 of 2014 for delivery of possession. Though the petitioners have preferred an appeal in A.S.No.53 of 2014, against the judgement and decree passed in O.S.No.285 of 2010, they did not obtain stay of the execution of the decree. So, the executing Court ordered delivery. Challenging the order, the present revision is filed.

4. Mr.T.Lajapathi Roy, learned counsel for the petitioners would submit that the respondent is none other than the brother of the first petitioner and during the pendency of the appeal, the decree passed in O.S.No.280 of 2010 cannot be executed. It is further submitted that the petitioners have now filed I.A.No.25 of https://hcservices.ecourts.gov.in/hcservices/

2016, seeking stay of the decree and the same is still pending.

5. Heard the learned counsel for the petitioners and perused the records.

6. It is settled law that mere filing of an appeal would not amount to staying execution of the decree. Admittedly, the appellate Court has not granted stay so far. Therefore, the executing Court has rightly ordered delivery. I do not find any perversity or illegality in the order of the Court below.

7. Accordingly, this Civil Revision Petition is dismissed. However, the District Judge, Kankayakumari @ Nagercoil shall dispose of the I.A.No.25 of 2016, as expeditiously as possible. No Costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(Crl.side) /True Copy/ Sub Assistant Registrar To 1 The I Additional Subordinate Court, Nagarcoil 2 Principal District Court, Kanyakumari @ Nagercoil.

+1 cc to MR.T.LAJAPATHI ROY, Advocate Sr.No.47359 C.R.P(MD)No.1642 of 2016(NPD) 24.08.2016 SMA/PV/02.11.2016:2P/4C https://hcservices.ecourts.gov.in/hcservices/