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Judgment
Dr. V.R.K. Krupa Sagar, J
This revision filed under Section 115 C.P.C. questions the correctness of order dated 26.06.2019 of learned I Additional Junior Civil Judge, Eluru in E.A.No.143 of 2019 in E.P.No.42 of 2016 in O.S.No.415 of 2008. The revision petitioner is J.D.r and the respondent herein is the D.Hr.
O.S.No.415 of 2008, after trial was decreed in favour of the plaintiff and decree dated 08.05.2015 discloses that one of the reliefs granted to the plaintiff was a mandatory injunction, which directed the defendant in the suit to remove certain structures and deliver vacant possession to the plaintiff. Alleging that the decree directions were not complied with, the plaintiff as D.Hr. filed E.P.No.42 of 2016 in O.S.No.415 of 2008 under Order XXI Rule 32 C.P.C. for enforcing the decree directions. During the course of progress of enquiry into that execution petition, J.Dr. moved E.A.No.143 of 2019 under Order XXI Rule 26 and Section 151 C.P.C. seeking the following relief:
“For the reasons stated in the accompanying affidavit the petitioner prays that the Hon’ble Court may be pleased to stay of all further proceedings in E.P.No.42 of 2016 in O.S.No.415 of 2008 pending disposal of the Appeal in SR No.5126 of 2018 in view of intentional avoiding of taking notice in Appeal proceedings by the respondent/D.Hr. in the interest of justice, else the great failure of justice and also I will be put to irreparable loss and injury.”
D.Hr. filed a counter. After due enquiry the executing Court passed the impugned order saying that there was no merit in the petition and execution need not be stayed and dismissed the petition filed by the J.Dr. Challenging that, the present revision is filed.
The affidavit of the J.Dr. filed before the executing Court and the counter filed by the D.Hr. and the impugned order would show that after commencement of execution proceedings J.Dr. thought of preferring an appeal before learned Principal District Judge, West Godavari, Eluru. However, finding that the presentation of appeal was delayed, he moved an application to condone the delay for filing an appeal and the appeal papers were given A.S.S.R.No.5126 of 2018. The application to condone delay filed under Section 5 of the Limitation Act was numbered as I.A.No.1852 of 2018 and they were pending before learned Principal District Judge, West Godavari, Eluru. In the executing Court, J.Dr. says that he also moved an application for stay before the appellate Court but the same was not granted since the appeal was not yet admitted. In those circumstances, he wanted stay of execution petition. In the impugned order, the learned executing Court found that J.Dr. having preferred an appeal should obtain stay from the appellate Court and it found no valid ground to stay the execution proceedings and dismissed the petition. Whatever that is alleged in the executing Court is once again alleged in this revision and it is stated that the executing Court committed error in dismissing the application and sought for upsetting it.
Learned counsel for respondent/D.Hr. opposed the petition and argued in support of the impugned order.
During the course of hearing of this revision, it is admitted by both sides that I.A.No.1852 of 2018 in A.S.S.R.No.5126 of 2018 filed by J.Dr. before the learned Principal District Judge, West Godavari, Eluru wherein J.Dr. sought for condonation of 931 days delay in preferring the first appeal was dismissed by the learned Principal District Judge by an order dated 16.08.2019. It is also admitted by learned counsel on both sides that aggrieved by that order, J.D.r preferred C.R.P.No.2800 of 2019 before this Court. Today, C.R.P.No.2800 of 2019 is disposed of by this Court and this Court’s order is that the C.R.P. is dismissed and consequently, the order that dismissed the petition filed under Section 5 of the Limitation Act by the first appellate Court was confirmed. In these circumstances, the questions raised in the present revision concerning stay of execution loses efficacy. Therefore, this revision has to be dismissed.
In the result, this Civil Revision Petition is dismissed confirming the order dated 26.06.2019 in E.A.No.143 of 2019 in E.P.No.42 of 2016 in O.S.No.415 of 2008 on the file of learned I Additional Junior Civil Judge, Eluru. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.