Power to Stay Execution Exists, But Must Be Exercised by the Right Court: P&H HC

“Execution Cannot Precede Adjudication on Setting Aside Ex-Parte Decree”— Punjab & Haryana High Court  addressed a crucial procedural question under the Civil Procedure Code—whether an executing court must stay execution proceedings when an application to set aside an ex-parte decree under Order 9 Rule 13 CPC is pending.

Justice Virinder Aggarwal ruled that while the Executing Court acted within its jurisdiction in refusing to stay execution, the petitioner could not be left remediless. Accordingly, the High Court granted a one-week protective stay on the execution, allowing the petitioner time to move the proper forum for a stay in line with Order 21 Rule 26 CPC.

“The Executing Court Was Not the Right Forum to Seek Stay of Execution”—Court Clarifies Scope of Jurisdiction Under Order 21 Rule 26 CPC

The petitioner had sought to stay execution of a decree passed ex-parte on 27.02.2025 on the ground that he had already filed an application under Order 9 Rule 13 CPC for setting aside the decree. However, the Executing Court dismissed the application and issued sale warrants, reasoning that the ex-parte decree continued to be valid and enforceable until set aside.

Justice Aggarwal examined the operative part of the executing court’s order, which noted: “It clearly appears that the application for staying the proceedings has been filed with the intention to mislead the Court and delay the proceedings of the present execution… there is no ground for allowing the present application and staying this execution.”

However, the High Court clarified that Order 21 Rule 26 CPC permits stay only for reasonable time and only by the court where the decree was passed or appellate forum, not by a court that is merely executing the decree.

“The petitioner was required to move the application for stay of execution before the same court where the application under Order 9 Rule 13 CPC is pending, and not before the Executing Court,” the High Court held.

“Power Exists, But Exercise Must Be Proper”—Court Reads Rule 26 of Order 21 CPC in Totality

Justice Aggarwal quoted Order 21 Rule 26 CPC, emphasizing: “The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed…”

He held that while the power to stay execution exists, it is conditional and procedural, and cannot be misdirected to the wrong forum. The Executing Court is not the appropriate forum to examine the merits of a pending Order 9 Rule 13 application; its role is to implement valid decrees unless otherwise ordered.

“To Protect the Petitioner’s Right, Temporary Stay Granted”—High Court Balances Strict Procedure With Substantive Fairness

Despite affirming the Executing Court’s jurisdictional correctness, the High Court expressed concern that “dismissing the stay plea outright without allowing the petitioner time to approach the correct court may result in grave prejudice.”

Therefore, invoking inherent powers under Article 227 of the Constitution, the Court granted a protective stay for one week, directing: “Operation of the impugned order and execution of the decree is stayed for a period of one week... In case within a period of one week from today that application is filed for stay of execution proceedings, the Court is requested to dispose of the application expeditiously within 15 days.”

The stay would continue till the disposal of the proper stay application filed before the Court where the Order 9 Rule 13 petition is pending.

This judgment reaffirms that procedural justice requires not just correct application of law, but timely and appropriate remedy. The High Court walked a fine line—not interfering with the execution process, but ensuring the petitioner was not denied the opportunity to have his case properly adjudicated.

Justice Aggarwal’s ruling provides clarity on the boundaries of judicial discretion under Order 21 Rule 26 CPC, and sends a clear message: “Jurisdiction matters, and so does fairness.”

Date of Decision: 11.09.2025