Mere Pendency Of Appeal Does Not Operate As Stay On Execution Of Trial Court's Decree: AP High Court

For context— the Court was dealing with a case where the petitioner lost a suit for eviction and filed an appeal, which was later dismissed for non-prosecution, leaving the Trial Court's decree intact. The decree holder (respondent) then filed an Execution petition, where the Execution Court issued notice to the petitioner to appear and raise objections, which the petitioner challenged in a revision petition claiming that the decree was not final.

Against this backdrop, Justice Ravi Nath Tilhari held,

“This Court is of the considered view that the Civil Revision Petition under Section 115 of CPC against the impugned notice asking the petitioner to appear in the execution case and to file the objections, if any, fixing a date and time is not maintainable. It is not a case decided by any Court subordinate to the High Court. There is also no jurisdictional error in issuing notice. The petitioner instead of approaching this Court should have approached the Execution Court pursuant to the notice and must have been duly advised by his counsel.”

“The dismissal of appeal even in default confirms the Trial Court's decree. Mere pendency of the appeal does not operate as stay on execution of the Trial Court's decree, though here no appeal is pending. The Execution Court has the power and jurisdiction to execute the decree.” the Court added.

Background

In the original suit filed by the respondent, a decree was passed by the Trial Court, whereby, the petitioner was directed to vacate possession of the 2nd floor premises of the plaint schedule property on or before February 8, 2007. Upon failure of the petitioner to vacate, the respondent was directed to recover the same through process of law.

Subsequently, the petitioner filed an appeal against the decree which was dismissed for non-prosecution. Thereafter, the decree holder/respondent filed an Execution Petition, where the Execution Court, vide a notice dated 02.09.2025, directed the petitioner to appear before the Court and raise objection, if any, and upon failure to do so, the matter shall be decided ex-parte.

Aggrieved by the said notice, the petitioner filed a revision petition seeking setting aside of the notice on the grounds that his appeal was dismissed in default and not on merits, which implies that the Trial Court's decree did not become final, and hence, could not be executed. He submitted that in his earlier appeal, he had also filed an IA which was pending. He further submitted that no provision of law under which the impugned notice was issued had been mentioned.

The Court referred to Order 41 Rule 17 of CPC— which empowers a Court to dismiss an appeal when the appellant does not appear when his appeal is called for hearing. The Explanation further provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.

In light of this provision, the Court held,

“In the absence of the appellant's counsel an appeal under Section 96 CPC cannot be decided on merits. It has to be dismissed for want of prosecution, in view of Order 41 Rule 17 CPC Explanation.”

With respect to the argument that no provision was mentioned in the notice, the Single Judge held that– “Non-mention of any legal provision in the impugned notice does not vitiate the notice nor takes away the jurisdiction of the Execution Court.”

As the petitioner had urgently gotten the matter listed as 'lunch motion' by making a misrepresentation to the Court, the Court reprimanded,

“Filing such petitions amounts to abuse and misuse of the process of this Court. Citing urgency for lunch motion on a non-existent ground by misstatement deserves imposition of costs.”

Accordingly, the Court imposed Rs.25000/- costs on the petitioner, payable to the Andhra Pradesh High Court Legal Services Committee. The revision petition was subsequently dismissed.

Case Details:

Case Number: CIVIL REVISION PETITION NO: 2460/2025

Case Title: Pilla Venkateswara Rao Alias Allabakshu v. Kancherla Malyadri

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