Madras HC Upholds Refusal To Stay Partition-Decree Execution After Appeal Restoration Was Sought Nearly 4 Years After Default Dismissal

The respondents’ predecessor obtained a preliminary partition decree granting the plaintiff a one-fourth share, followed by a final decree.

The decree-holders initiated execution in R.E.P. No. 24 of 2025.

The petitioners’ second appeal against the preliminary decree, filed in 2019, had been dismissed for default; they later sought restoration after a delay of nearly four years.

During execution, they sought a stay under Order XXI Rule 26 CPC.

The Executing Court returned the stay applications, prompting these revision petitions under Article 227 of the Constitution

Order XXI Rule 26 CPC is an enabling provision permitting an Executing Court to stay execution to allow an aggrieved party to approach the appellate court and obtain a stay.

The Court considered the petitioners’ revision under Article 227 of the Constitution, as stated in the prayers.

The Court reasoned that Rule 26 is intended to give an aggrieved party time to seek relief from the appellate court.

The petitioners had already pursued a second appeal, but it was dismissed for default, and they did not immediately seek restoration; their restoration applications followed a delay of nearly four years.

In those circumstances, they were not entitled to use Rule 26 to stay execution, and the Executing Court’s return of the applications disclosed no error warranting interference.

Both civil revision petitions were dismissed without costs, and the connected miscellaneous petitions were closed.