Karnataka High Court
Ningaiah vs Basavaraju on 5 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:19594
WP No. 21858 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 21858 OF 2021 (GM-CPC)
BETWEEN:
NINGAIAH
S/O LATE KENCHAIAH
AGED 57 YEARS
R/AT MUTHEGERE VILLAGE
BASARALU HOBLI
MANDYA TALUK AND DISTRICT
...PETITIONER
(BY SRI. KARUMBAIAH T.A..,ADVOCATE)
AND:
BASAVARAJU
S/O LATE CHIKKA CHANNEGOWDA
AGED 47 YEARS
R/AT MUTHEGERE VILLAGE
BASARALU HOBLI
Digitally signed MANDYA TALUK AND DISTRICT
by VANDANA S ...RESPONDENT
Location: High (BY SRI. G K SHIVA PRAKASH.,ADVOCATE)
Court of
Karnataka THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-F THE
ORDER DTD.16.3.2020 PASSED BY THE ADDITIONAL CIVIL JUDGE
AND JMFC MANDYA ON IA NO.III IN EX PET.NO.58/2015 AND
PRAYED IA NO.III FILED BY THE RESPONDENT.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC:19594
WP No. 21858 of 2021
ORDER
This petition by the Decree holder in Ex.No.58/2015 is directed against the impugned order dated 16.03.2020 passed on I.A.No.3 by the Addl.Civil Judge & JMFC, Mandya, whereby the said application filed by the respondent - Judgment debtor seeking stay of execution proceedings pending disposal of the suit in O.S.No.80/2016 filed by the respondent - Judgment debtor was allowed by the Executing court.
2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.
3. The material on record discloses that the petitioner - Decree holder filed the instant execution proceedings in Ex.No.58/2015 seeking to enforce, implement and execute the judgment and decree dated 02.06.2012 passed in O.S.No.256/2005, which was confirmed by the first appellate court in R.A.No.34/2012. During the pendency of the said execution proceedings, the respondent - judgment debtor has instituted one more suit in O.S.No.80/2016 in the year 2016, -3- NC: 2023:KHC:19594 WP No. 21858 of 2021 which is also pending adjudication before the trial court. Under these circumstances, the respondent filed the instant application I.A.No.3 invoking Order 21 Rule 29 CPC and sought for stay of the execution proceedings pending disposal of the aforesaid suit in O.S.No.80/2016 filed by him. The said application having been opposed by the petitioner - Decree holder, the trial court proceeded to pass the impugned order allowing I.A.No.3, aggrieved by which, the petitioner - Decree holder is before this Court by way of the present petition.
4. A perusal of the material on record including the impugned order will indicate that the trial court has failed to consider and appreciate the well settled position of law that in order to invoke Order 21 Rule 29 CPC so as to enable the Judgment Debtors to seek stay of further execution proceedings, it is absolutely essential that the suit filed by him should be anterior and prior in point of time of the institution of the execution proceedings. While interpreting the principles underlying under Order 21 Rule 29 CPC, this Court in the case of Sikander Mohammed Ali Dalaf& others vs. Babu -4- NC: 2023:KHC:19594 WP No. 21858 of 2021 Hanumanth Mindolkar & others - W.P.No.103071/2017 dated 18.01.2023, held as under:-
" 17. As can be seen from the aforesaid judgments, the principles underlying Order 21 Rule 29 CPC can be summarized as under:
a) That, Order 21 Rule 29 CPC is applicable only if the suit and the execution proceedings referred to in the said provisions are pending before the very same Court and not before two different courts which are not of co-ordinate jurisdiction;
b) That the said provisions will not apply if the suit is instituted subsequent to institution of the execution proceedings: In other words, the said provision would apply only if the suit is instituted prior to institution of the execution proceedings and in the event the execution proceedings have already been instituted, mere institution of suit subsequently and its pendency cannot be made the basis to invoke Order 21 Rule 29 CPC;
C) The power and jurisdiction to stay its own proceeding pending before itself by the executing Court has to be exercised only under extraordinary and exceptional circumstances and not as a matter of course and care/ caution has to be taken by the executing Court to find out if staying its own proceedings would result in abuse of process of law and in that event, the executing Court would not stay further proceedings under these provisions.
18. Under these circumstances, having regard to the facts of the case on hand, I am of the considered opinion that this is not a fit case which would enable the executing Court to exercise its discretion to stay execution proceedings and on this ground also, the -5- NC: 2023:KHC:19594 WP No. 21858 of 2021 impugned order passed by the executing Court deserves to be set aside.
19. Insofar as the reliance placed by the executing Court on the judgment of this Court in the case of U.Sadanand Udupa Vs. Smt. T. Kusuma Shedthi (2011) 5 KCCR 4017 is concerned, the said judgment is clearly distinguishable on facts and the same cannot be applied to the factual situation obtaining in the instant case. Consequently, the finding recorded by the executing Court relying upon the said judgment is clearly erroneous and unsound. "
5. As can be seen from the aforesaid judgment, this Court has categorically held that an application under Order 21 Rule 29 CPC seeking stay of execution proceedings on the ground that the suit has already been instituted by the Judgment Debtor would be maintainable only if the said suit was instituted prior to institution of the execution proceedings. In the instant case, it is an undisputed fact that the petitioner - Decree holder has instituted the execution proceedings on 28.03.2015 whilst the respondent - Judgment Debtor has subsequently filed the aforesaid suit in O.S.No.80/2016 in the year 2016. Under these circumstances, I am of the considered opinion that the trial court clearly fell in error in allowing -6- NC: 2023:KHC:19594 WP No. 21858 of 2021 I.A.No.3 and the same has occasioned failure of justice warranting interference by this Court in the present petition.
6. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) The impugned order at Annexure-F dated 16.03.2020 passed by the Addl.Civil Judge & JMFC, Mandya, on I.A.No.3 in Ex.No.58/2015 is hereby set aside.
(iii) I.A.No.3 filed by the respondent stands dismissed.
(iv) However, liberty is reserved in favour of the respective parties to file appropriate Interlocutory application(s) which shall be considered by the trial court in accordance with law after providing sufficient and reasonable opportunity to both the parties.
(v) All rival contentions between the parties are kept open and no opinion is expressed on the same.
Sd/-
JUDGE Srl.