Madras High Court
Balammal vs Muthiar Begum on 22 November, 2012
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.11.2012
CORAM
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
C.R.P.(NPD)No.3287 of 2012
and
M.P.No.1 of 2012
1. Balammal
2. L.Vilaya
3. P.Shanthi .. Petitioners
Vs.
1. Muthiar Begum
2. M.A.Latheef .. Respondents
Prayer: Civil Revision Petition is filed under Section 115 of C.P.C., against the Fair and Final Orders dated 06.07.2012 passed in E.A.No.Nil/2012 in E.P.No.107 of 2011 in O.S.No.270 of 2004 on the file of the District Munsiff at Sholinghur.
For Petitioners : Mr.S.Arunkumar
For Respondents : Mr.S.Parthasarathy, (Senior Counsel)
For Mr.J.Ramakrishnan
O R D E R
This revision petition has been filed by the judgment debtors / the defendants in O.S.No.270 of 2004 before this Court. The respondents are the decree holders / the plaintiffs in the suit.
2.The parties herein are referred to as per their rankings in the suit for the sake of convenience.
3.The suit in O.S.No.270 of 2004 was filed by the plaintiffs for recovery of possession and for mandatory injunction before the District Munsif Court, Sholinghur. After contest, the suit was decreed on 22.06.2005. Thereafter, the matter was taken up on appeal and finally ended up in this Court in S.A.No.1268 of 2006 which was also dismissed on 27.01.2011, confirming the judgment and decree passed in the Courts below. Thereafter, an execution petition in E.P.No.107 of 2011 was filed by the plaintiffs / decree holders before the District Munsif Court, Sholinghur to execute the decree obtained in O.S.No.270 of 2004. Pending E.P., a suit in O.S.No.104 of 2012 was filed by the defendants / Judgment Debtors before Sub-Court, Ranipet, for declaration that they are the absolute owners of the suit schedule property therein. Their case in that suit is that the defendants in that suit/the plaintiffs in O.S.No.270 of 2004 are trying to evict them from their property under the guise of execution of the decree obtained in O.S.No.270/2004. Thereafter, the defendants filed an application in E.A.No.Nil of 2012 in the E.P.No.107 of 2011 under Order 21 Rule 29 to stay all further proceedings in E.P.No.107 of 2011 in O.S.No.270 of 2004, pending disposal of the above suit in O.S.No.104 of 2012 filed by the defendants before the Sub-Court, Ranipet. According to the judgment debtors, unless the said suit is adjudicated upon and decided on merits, the decree obtained in O.S.No.270 of 2004 should not be allowed to be executed. The Executing Court, by order dated 06.07.2012 rejected the said application filed under Order 21 Rule 29 CPC at the pre-numbering stage itself. Aggrieved over the same, the above revision has been filed by the judgment debtors.
4.I have heard the learned counsel appearing for the judgment debtor / the petitioners herein and Mr.S.Parthasarathy, learned senior counsel appearing for the plaintiffs / the respondents herein / the decree holders. I have also gone through the documents available on record.
5.The learned counsel appearing for the petitioners would contend that the respondents / plaintiffs under the guise of execution of a decree are claiming property which is not their property. According to him, the property what they are claiming is in a different Survey number and address is also different. When it was pointed out to the Execution Court, the Execution Court without considering this, rejected the application without even numbering the same. It is his further submission that the judgment debtors have filed a separate suit for declaration before the Subordinate Court, Ranipet in O.S.No.104 of 2012 seeking to declare themselves as the absolute owners of the suit property marked thereon and the same is pending adjudication. Therefore, the Execution proceedings should have stayed by the Court below till the disposal of O.S.No.104 of 2012. Rejection of the application filed by the petitioners herein at the pre-numbering stage itself has resulted in miscarriage of justice, as the respondents are going to get a property through execution which does not belong to them. Therefore, the decree obtained in O.S.No.270 of 2004, which is put to execution is based on a mistaken identity and it ought to have been stayed by the Execution Court. Further, it is his case that under Order 21 Rule 29 of C.P.C., the Court has got power to stay the execution of the decree. More so, when the suit filed by the judgment debtor is pending against the person against whom the decree was passed, the Court ought to have stayed the decree until the pending suit is decided. The failure of the Execution Court to exercise its power under this provision and rejecting the application at the pre-numbering stage has caused grave prejudice to the judgment debtor. Hence, the Civil Revision Petition has to be allowed and the Execution Court should be directed to consider this issue and pass orders accordingly.
6.Per contra, the learned senior counsel, Mr.S.Parthasarathy representing the respondents would submit that the attempt on the part of the judgment debtors in filing this Civil Revision Petition is nothing but an abuse of process of law, as it is yet another attempt on the part of the judgment debtors to stall the execution of a decree, validly obtained after contest and which has been confirmed upto the second appeal before this Court also. Therefore, there is absolutely no merit in the Civil Revision Petition and it has to be dismissed in limini. His case that the judgment debtors have filed the suit for declaration that they are the absolute owners of the suit property therein would in no way stand in the way of the decree holder executing the decree. He submits that it is for the judgment debtor to prove his case in that suit, succeed and get a decree thereon. Furthermore, it is their case that the decree holder / the respondent herein is trying to execute a decree on a property which is not theirs. According to the learned senior counsel that should not be a concern of a judgment debtor and the decree holder who executes the decree, will take care of that. Furthermore, he also refers to the evidence of RW1 before the Court below wherein he has admitted that the said oil mill is the only property in the suit and excepting that, they did not have any other property in any other place and the dispute between the petitioner and the defendant is also in respect of the said oil mill only. Further, he submits that though they claim that the property belongs to them, no document has been produced in support of their contentions. Therefore, according to him, the order passed by the Execution Court is in order and does not warrant any interference from this Court.
7.I have considered the rival submissions carefully.
8.It is an admitted fact that the respondents herein as plaintiffs have filed O.S.No.270 of 2004 on the file of the District Munsiff, Sholinghar, for the following reliefs viz:
1)directing the revision petitioners / defendants to deliver back the possession of the plaint schedule property to the plaintiffs and in default by them, through process of Court;
2)grant mandatory injunction directing the revision petitioners/defendants to remove the superstructure built upon on the plaint schedule vacant site at their cost and in default by them, the same may be removed through process of Court;
3)directing the revision petitioners / defendants to pay the cost of the suit.
9.The plaint schedule property is described as under:
"Vellore District, Walaja Taluk, Sholinghur Town, Vacant site at Post Office Street in Gramantham S.F.No.1069/B5/A1A1 situated tot he sought of the said post office street, to the North of the vacant site of M.A.Latheef and Muthiyar Begum to the East of the site of M.A.Latheef and to the West of Muthiyar Begum a site within the said boundaries the vacant site measuring East to West 18 feet and North to South 28 feet and out of that the western portion measuring East to West 9'3" and North to South 28 feet belongs to the 2nd plaintiff and eastern measuring east to west 8'9" and North to South 28 feet belongs to the 1st plaintiffs and the entire premises now bears Door No:65/17."
10.The suit in O.S.No.270 of 2004 was contested on merits and on 22.06.2005, the District Munsiff Court, Sholinghar decreed as prayed for with cost of Rs.1227.25/-. Aggrieved by the judgment and decree dated 22.06.2005, a First Appeal was filed by the revision petitioners / defendants in A.S.No.99 of 2005 on the file of the Subordinate Judge, Ranipet and the same was dismissed on 10.10.2006. The decree and judgment dated 10.10.2006 in A.S.No.99 of 2005 was further taken into appeal by the revision petitioners / defendants before this Court in S.A.No.1268 of 2006 and this Court on 27.01.2011, dismissed the second appeal.
11.Before the learned Judge, in S.A.No.1268 of 2006, the learned counsel for the revision petitioners herein made a representation requesting this Court to grant one year time for vacating the premises by the defendants which was opposed by the learned senior counsel for the respondents / plaintiffs. However, the learned senior counsel for the respondents / plaintiffs was willing to grant six months time and considering both the submissions of the learned counsel, this Court in the interest of justice, granted nine months time to the revision petitioners to vacate, subject to payment of damages for use and occupation in Pariamateria with the monthly payment paid already. This Court further directed that an affidavit of undertaking can be filed by the revision petitioners to that effect within three weeks time from the date of receipt of a copy of the order.
12.Admittedly, the revision petitioners did not vacate within the time granted by this Court and therefore the respondents herein filed E.P.No.107 of 2011. The revision petitioners herein filed E.A.No.28 of 2012 under Section 47 of C.P.C. and the same was dismissed by the Execution Court on 29.02.2012. Thereafter, they filed O.S.No.104 of 2012 on the file of the Subordinate Judge, Ranipet for a declaration declaring that the revision petitioners herein are the absolute owners of the suit property as being in possession and enjoyment of the suit property for more than the statutory period of 12 years and for consequential injunction against the defendants in any way interfering with the peaceful possession and enjoyment and also for the cost of the suit. Thereafter, they filed an application under Order XXI Rule 29 before the Execution Court in E.P.No.107 of 2011 praying to stay all further proceedings in E.P.No.107 of 2011 in O.S.No.270 of 2004 pending disposal of the suit filed in O.S.No.104 of 2012, on the file of the Sub Court, Ranipet. On 06.07.2012, the Execution Court rejected the application filed under Order XXI Rule 29 CPC without even numbering the same by holding that the Execution Court is not competent to go beyond the scope of decree in O.S.No.270 of 2004. Aggrieved by this order dated 06.07.2012, the above revision petition has been filed by the petitioners under Section 115 of CPC.
13.The only reason adduced by the revision petitioners in the application filed by them under Order XXI Rule 29 CPC is that they as judgment debtors in E.P.No.107/2011, filed O.S.No.270 of 2004 against the decree holders in E.P.No.107/2011 and therefore, Order XXI Rule 29 will hold the file and in such circumstances, the Execution Court should stay the execution of the decree until the pending suit has been decided. For better appreciation, it is necessary to extract Order XXI Rule 29 CPC, as this position has been strongly relied on by the revision petitions to stay the execution of the decree:
29.Stay of execution pending suit between decree-holder and judgment-debtor:-
Where a suit is pending in any Court against the holder of a decree of such Court [or of a decree which is being executed by such Court], on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided:
[Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.]
14.A perusal of Order XXI Rule 29 CPC would reveal that there should be simultaneously two proceedings in one Court. One is the proceeding in the Execution Court filed by the decree holders against the judgment debtors and the other proceedings is a suit filed by the judgment debtors against the decree holders. Further, the suit must be not only pending in the very same Court, but also, against the holder of a decree of that Court.
15.In 1972 (2) SCC 731 (Shaukat Hussai alias Ali Akram and others vs. Smt.Bhuneshwari Devi (dead) by LRs and others), the Hon'ble Supreme Court held as follows:
"6.Order XXI, CPC deals generally with the execution of decrees and orders. That order is divided into several topics, each topic containing a number of rules. The first four topics cover rules 1 to 25 and the fifth topic, namely, stay of execution comprises 4 rules, namely, rules 26 to 29. A perusal of these rules will show that the first three rules i.e. rules 26 to 28 deal with the powers and duties of a court to which decree has been sent for execution. Under rule 26, that court can stay the execution of the decree transferred to it for execution for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction over the former for an order to stay execution or for any other order relating to the decree or execution which might have been made by the court of first instance or the appellate court. It will be seen, therefore, that under rule 26 the transferee court has a limited power to stay execution before it. Moreover, under sub-rule (2) if any property is seized by it in the course of execution, it may even order the restitution of the property pending the result of the application made by the judgment-debtor to the court of the first instance or to the appellate court. Rule 27 says that any such restitution made under sub-rule (2) of rule 26 will not prevent the property of the judgment-debtor from being retaken in execution of the decree sent for execution. Rule 28 provides that any order of the court by which the decree was passed, in relation to the execution of such decree, shall be binding upon the court to which the decree was sent for execution. And then we have rule 29 which deals with a different situation. The rule is as follows :
" Where a suit is pending in any court against the holder of a decree of such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."
It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the instance of the judgment-debtor against the decree-holder. That is a condition under which the court in which the suit is pending may stay the execution before it. If that was the only condition, Mr.Chagla would be right in his contention, because admittedly there was a proceeding in execution by the decree-holder against the judgment-debtor in the court of Munsif 1st Gaya and there was also a suit at the instance of the judgment-debtor against the decreeholder in that court. But there is a snag in that rule. It is not enough that there is a suit pending by the judgment-debtor, it is further necessary that the suit must be against the holder of a decree of such court. The words "such court" are important. "Such court" means in the context of that rule the court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that court. That appears to be the plain meaning of the rule.
7.It is true that in appropriate cases a court may grant an injunction against a party not to prosecute a proceeding in some other court. But ordinarily courts, unless they exercise appellate or revisional jurisdiction, do not have the power to stop proceedings in other courts by an order directed to such courts. For this specific provisions of law are necessary. Rule 29 clearly shows that the power of the court to stay execution before it flows directly from the fact that the execution is at the instance of the decree- holder whose decree had been passed by that court only. If the decree in execution was not passed by it, it had no jurisdiction to stay the execution. In fact this is emphasised by rule 26 already referred to. In the case before us the decree sought to be executed was not the decree of Munsif 1st Court Gaya but the decree of the Subordinate Judge, Gaya passed by him in exercise of his Small Cause Court jurisdiction. It is, therefore, obvious that the Order staying execution passed by the Munsif, Gaya would be incompetent and without jurisdiction."
16.In 1997 (1) MLJ 48 (M/s.Diamond Sea Foods Exports, Tuticorin, through its Managing Partner D.Durairaj vs. A.M.Nicholas), this Court held as follows:
"10.The point for consideration is, whether any ground has been made to stay the execution of the decree under Order 21, Rule 29, C.P.C.
11. Order 21, Rule 29, C.P.C. reads thus:-
'Where a suit is pending in any Court against the holder of a decree of such Court or of a decree which is being executed by such Court on 'the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided:
Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.'
12.As early as in the decision reported in Kannammal v. Muthukumaraswami Chetty, A.I.R. 1936 Mad. 102: 70 MLJ 120:160 I.C.563: 1936 M.W.N. 349: 43 L.W. 493 the scope of Order 21, Rule 29, C.P.C. was considered, and Beasley, C.J. held thus:-
'....The object of the rule is that, should a plaintiff in a pending suit succeed therein, then there can be an adjustment of the decree or claim by that plaintiff against the decree obtained against him in the other suit in the same Court without it being necessary for the successful plaintiff the pending suit to take out execution proceedings. Execution in the other suit is stayed so that the rights of the parties can be adjusted..."
But, while considering the Rule, the following principles were also enunciated by the Supreme Court in the decision reported in Shaukat Hussain v. Bhuneshwari Devi Shaukat Hussain v. Bhuneshwari Devi Shaukat Hussain v. Bhuneshwari Devi (1972) S.C.C. 731:A.I.R. 1973 S.C. 528:(1973) 1 S.C.R. 1022 in that case, their Lordships held thus:-
'A perusal of Order 21, Rule 29, C.P.C. would reveal that there should be simultaneously two proceedings in one Court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the instance of the judgment-debtor against the decree-holder. But a mere pendency of a suit is not enough. It is further necessary that the suit must be against the holder of the decree of such court. The words 'such court' are important. In the context of that rule, these words mean the Court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that Court.'
13.In P. Shanmugham v. K.Manickam, 1980 (2) M.L.J. 383 V. Ratnam, J. (as he then was), following the above said decision of the Supreme Court, held thus:-
'Under Rule 29 of Order 21 Civil Procedure Code, if a suit by a judgment-debtor is pending in a Court against the holder of a decree of that Court, the execution of the decree may be stayed until the disposal of the suit. It is obvious that this rule is intended to enable the judgment-debtor and the decree-holder to adjust their claims against each other and also to avoid multiplicity of proceedings. The Supreme Court in Shaukat Hussain v. Bhuneshwari Devi Shaukat Hussain v. Bhuneshwari Devi Shaukat Hussain v. Bhuneshwari Devi (1972) S.C.C. 731:(1973) 1 S.C.R. 1022:A.I.R. 1973 S.C. 528, pointed out that the requisite before the rule can be invoked in two simultaneous proceedings in one Court, namely, (1) a proceeding in execution of the decree initiated by the decree-holder; (2) the pendency of a suit at the instance of the judgment-debtor against the holder of the decree of that Court. Rule 29 of Order 21 Civil Procedure Code, is not an imperative one and the court as a matter of exercise of its discretion can either grant the stay asked for or refuse the same.'
14. In Smt. Yasodamma and Ors. v. S. Anjaiah, 1986 (1) ALT. 93, Jagannatha Rao. J. (as he then was), held the purpose behind Order 21, Rule 29, C.P.C. thus:-
"The intendment behind Order 21, Rule 29, C.P.C. is the prevention of multiplicity of proceedings and to ensure that the plaintiff can set off or wipe out any amount due by him towards any amount due to him. If the title to the property or possession remains the same, the judgment-debtor cannot resort to Order 21, Rule 29 C.P.C. merely because he has not put forward a plea which was open to him at the time when the decree was obtained against him, earlier. If such resort to Order 21, Rule 29, C.P.C. is permitted, it would enable judgment-debtors to by pass the provisions of constructive res judicata incorporated in Section 11 C.P.C. and protract the execution 'proceedings endlessly.' The learned Judge also followed an early decision of the Calcutta High Court in Mahesh Chandra v. Jogandra Lal. AIR. 1928 Calcutta 222, wherein the purpose of the Rule was held thus:-
'... the purpose of Order 21, Rule 29 C.P.C. is to prevent (1) the judgment debtor being compelled to satisfy the decree by providing the sum due when it might be proved (after his claim against the decree-holder was finally determined) that on balance, he owed the decree-holder less than the decretal sum of, it might be, nothing at all, and (2) to avoid multiplicity of execution proceedings.' Further, the learned Judge accepted the principles enunciated in the decision reported in Kannammal v. Muthukumaraswami Chetty, AIR. 1936 Mad. 102 : 70 MLJ 120 : 160 I.C. 563 : 43 L.W. 493.
15.It is also settled law that even if all the conditions of Order 21, Rule 29, C.P.C. are complied with, it does not follow that a stay has to be granted. The grant of stay is discretionary and the same will have to be ordered with due care and caution. In Sri Krishna Singh v. Mathura Ahir, of the Reports, (at page 426), their Lordship held thus:-
'We are rather amayed to find that the totally unwarranted plea taken by Sri Krishna Singh seems to have found favour with the Civil Judge who readily accepted the prayer of Sri Krishna Singh of staying the execution of the decree without realising the scope and ambit of Order 21, Rule 29. Under this provision, jurisdiction has to be exercised with very great care and only under special cases...."
16. In Subhas Kumar v. Sheo Balak, a learned Judge of the Patna High Court held thus:-
"The consideration of convenience is not a matter extraneous to the question of stay of a proceeding.
The principles which govern stay of execution in general ought to be the principles which would govern the stay of execution under Order 21, Rule 29 of the Code. The legislature cannot be deemed to have in mind any different principles to be adopted in respect of Rule 29 of the Code. Though words such as 'sufficient cause being shown' have not been mentioned in Rule 29, still it cannot be said in view of the power being discretionary that the Court was bound to stay the execution even without sufficient cause being there...."
17. In Paramananda Panda v. Krishna Chandra Panda, it was held thus:-
"In this suit for declaration that the decree passed in earlier title suit filed by plaintiffs father is not binding on the plaintiff on the ground that the father wantonly omitted to implead the plaintiff, the plaintiffs application for stay of execution of the decree in the title suit though styled as made under Section 94 of C.P.C. is in fact one covered by Order 21, Order 29, C.P.C. That being so, conditions under the said Order 29 should be satisfied for obtaining the relief thereunder. In the absence of any extraordinary circumstance the extraordinary relief under the provision could not be granted....... " (Italics supplied) In that case, their Lordships followed an earlier decision of the same High Court reported in Judhistir v. Surendra, wherein it was held thus:-
"The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the decree might succeed. Such suits are also of a very precarious nature. The allegations therein ordinarily would be that the previous decree was obtained by fraud or collusion or that the decree was not binding on the present plaintiff as the transaction entered into by the judgment-debtor was tainted with immorality. These are all suits of uncertain and speculative character. Most of these cases are likely to fail the onus being very heavy on the plaintiff to establish fraud and similar charges. That being the position, a person should not be deprived of the fruits of his decree merely because suits of frivolous character are instituted and litigants are out after further series of litigations. The decree must be allowed to be executed, and unless an extraordinary case is made out, no stay should be granted. Even if stay is granted, it must be on suitable terms, so that the earlier decree is not stifled."
18. Sir John Woodroffe and Ameer Ali, in 'Code of Civil Procedure -3rd Edition - Volume 3, at page 2040, have stated thus:-
"Rule 29 is applicable only to a decree-holder and the judgment-debtor and not to an objector who is not a party to the suit between the decree-holders and the judgment-debtor and he cannot seek stay of the execution under the said order. A decree passed by a competent court should be allowed to be executed and unless a strong case is made out on a cogent grounds no stay should be granted. There should be simultaneously two proceedings in one Court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the instance of the judgment-debtor against the decree- holder.
The Court has competency to stay not only the decree which it passed but also the decree which has been transferred to it for execution, though passed by another Court.
But a rigorous test is to be applied and in most of the cases prayer for stay is bound to be refused, unless a strong case is made out on cogent ground. Even if stay is granted it must be on such terms as to security, etc.. so that the earlier decree is not made ineffective due to lapse of time." (Italics supplied)
19. Mulla on 'Code of Civil Procedure' 15th Edition (1996), commenting on Order 21, Rule 29, C.P.C., at page 1684, has stated thus:-
"Jurisdiction to stay execution of the decree under Order 21, Order 29 has to be exercised with great care and only in special cases."
20. A.N. Saha on 'The Code of Civil Procedure' - 5th Edition (1996), at page 1295, has stated thus:-
"...Stay of execution pending suit between decree-holder and judgment-debtor has been provided in Order 21, Rule 29, C.P.C. For invoking Order 21, Rule 29 there should be simultaneously two proceedings in one Court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the instance of the judgment-debtor against the decree-holder. Then the Court may stay execution of the decree. The Court is not obliged to stay even when the requirements of Order 21, Rule 29 are fulfilled. It is purely discretionary. The exercise of power of stay under Order 21, Rule 29 depends upon facts and circumstances of each case. Even in cases where the prerequisites of Order 21, Order 29, C.P.C. are satisfied, Court may refuse to grant stay..."
26. In a Bench decision of our High Court reported in S.A. Ramanathan Chettiar v. M.P. Kashi Chettiar alias Meyappa Chettiar and Ors., 1943 (2) M.L.J. 452 the decision of the Calcutta High Court in Mahesh Chandra v. Jogendra Lal, 1928 I.L.R. (55) Cal. 512 came for consideration by this Court, wherein it was held thus:-
"...On a strict construction of the words used in the order, the appellant cannot argue that the order of stay continues even after disposal of the suit. That order having been made under Order 21, Rule 29 of the Code of Civil Procedure the learned advocate for the appellant argues that a wider operation ought to be given to it. The rule states as follows:-
"Where a suit is pending in any Court against the holder of a decree of such court, on the part of the person against whom the decree passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided." The contention is that the words 'until the pending suit has been decided' really mean until not merely this suit is decided but also until the remedies of the appellant are exhausted by appeals preferred against the decision in the suit. Reliance is placed on the decision of the Calcutta High Court in Mahesh Chandra Sadhu v. Jogendra Lal Sarkar, AIR. 1929 Cal.222 where the words 'until the pending suit has been decided, has been interpreted to mean 'until the pending suit has been finally decided.; the appeal being apparently regarded as a continuation of the suit. According to the learned Judges, the word 'suit; here includes an appeal or appeals from the decision until a finality is reached. But we find that this decision was considered in a later decision of the same Court in Radhabally Khan v. Pyarilal Ghosh in this case, the learned Judges emphatically dissented from the view taken in the earlier case and expressed that opinion that if it were necessary they would have referred the correctness of the earlier decision to a Full Bench, but they did not consider it necessary to do so as the order then under consideration was not one expressly made under Rule 29. Apart from these two decisions, we have not been referred to any other case directly bearing on the interpretation of the rule under consideration. Mr. Swaminatha Iyer, has, however, referred us to a decision of this court based upon Section 10 of the Civil Procedure Code where the words "pending suit" occur. In Chinnakaruppan Chetti v. Meyyappa Chetti, Seshagiri Ayyar, J., considered that those words meant to include the appellate stages of the suit as an appeal was but a continuation of a suit. We, are, however, not prepared to apply this reasoning to the provisions of Order 21, Rule 29 with which we are here concerned. We are not convinced that the reasons adduced by the learned Judges who decided the case in Mahesh Chandra Sadhu v. Jogendralal Sarkar, AIR 1928 Cal. 222 are sufficient to out-weigh the plain meaning of the words used in the rule. We consider that 'suit' in the rule means the suit and not the appeal or appeals therefrom to the appellate Court. The contention of the appellant based on Order 21, Rule 29 of the Civil Procedure Code must accordingly be overruled." (Italics supplied)
27. By staying the execution of the decree, the decree-holder, has to be deprived of getting its fruits and realising the same. The car which the respondent was bound to surrender in the year 1989 pursuant to the decree is allowed to continue to be in his possession even to-day. This, according to me, has caused great injustice to the decree-holder. The discretion was not properly exercised by the Court below, nor has it applied the law correctly. The facts were also not appreciated in the proper perspective. I hold that the order of the court below is liable to be set aside since it is illegal."
17.In 2010 (3) CLT 6 (The District Collector, Srikakulam and others vs. Bagathi Krishna Rao and another), which was relied by the learned counsel for the petitioners, the Hon'ble Supreme Court held that:
"an application for impleading necessary party could be filed at any stage of the proceeding provided the Court was satisfied with the exceptional circumstances prevailed in the case warranted the same."
18.In the light of the above facts and the law laid down by the Hon'ble Supreme Court and this Court, I am of the considered view that this revision petition has no merits at all and the same deserves to be dismissed for the following reasons:
a)First of all, it is not open to the revision petitioners to pray for time before this Court in S.A.No.1268 of 2006 and thereafter, to file a separate suit for declaration of title to the very same suit schedule property;
b)Secondly, after obtaining nine months time from this Court in S.A.No.1268 of 2006, the revision petitioners are estopped from claiming title for the very same suit schedule property in another suit i.e., O.S.No.104 of 2012. Further, the reasons now adduced by the revision petitioners in O.S.No.104/2012 are nothing new and the very same reasons were agitated by them before the Appellate Court in A.S.No.99/2005 on the file of the Sub Court, Ranipet. It is very useful to refer to paragraph No.97, page No.11 and 12 of the typed set of papers filed by the respondents."
19.From the above, it is very clear that the revision petitioners even before the First Appellate Court in A.S.No.1999/2005 filed by them contended that the suit schedule property was a vacant land which was leased to the first defendant's husband Ekambara Mudaliar on 07.03.1957 and the defendants are running an Oil Mill on the leased premises. It is further contended by them before the First Appellate Court that the property allotted to the plaintiffs in the partition deed tally with the suit schedule properties and the plaintiffs have given wrong description of the suit schedule properties. Thus, all the issues were already raised and hotly contested before the last Court of facts viz., the First Appellate Court, which did not accept the case of the revision petitioners and dismissed the first appeal on 10.10.2006.
20.If that being so, it is not at all open to the revision petitioners to raise the very same issue in a separate suit that too after getting nine months time in S.A.No.1268 of 2006.
21.Further, under Order XXI Rule 29 CPC, to stay the execution of the decree, the following conditions must be satisfied viz.:
a)there must be simultaneous proceedings;
b)an execution by the decree holder must be pending against the judgment debtor;
c)the judgment debtor must have filed a suit against the decree holder; and
d)the suit must be pending.
22.In so far as this case is concerned, the first condition viz., there must be simultaneous proceedings, is not at all satisfied by the revision petitioners herein. The suit in O.S.No.270/2004 was filed in the year 2004 and the suit was decreed on 22.06.2005. The appeal was filed in the year 2005 and the same was dismissed on 10.10.2006. The second appeal was filed in the year 2006 and the same was also dismissed on 27.01.2011. The suit in O.S.No.104/2012 was filed on 20.04.2012 whereas the execution petition in E.P.No.107/2011 was filed on 02.11.2011. In such circumstances, it cannot be said that simultaneous proceedings are pending so as to invoke Order XXI Rule 29 CPC.
23.Even assuming that simultaneous proceedings are pending and even all the conditions of Order XXI Rule 29 CPC get satisfied, still staying the execution of the decree is not automatic, as the Execution Court has to exercise its discretion whether by staying the decree, great injustice would be caused to the decree holder or not.
24.In the present case, as already referred to by me, the suit was filed in the year 2004 and the second appeal was dismissed on 27.01.2011. After gaining a further time of nine months from this Court, in the year 2012, the revision petitioners filed O.S.No.104/2012 and on that basis they filed A.S.No.1999/2005 under Order Xxi Rule 29 to stay the execution of the decree passed in O.s.No.270/2004. If at this point of time, the decree holders are not able to enjoy the fruits of the decree and to wait eternally for the conclusion of the proceedings in O.S.No.104/2012, it would cause grave injustice and therefore, in my considered opinion the Execution Court has rightly rejected the application filed under Order XXI Rule 29 CPC. Further, if the execution of the decree passed in O.S.No.270/2004 is stayed at this juncture, it is akin to a mockery of justice especially when the conduct of the revision petitioners is considered by t heir act of getting nine months time for vacating the premises before this Court in S.A.No.1268/2006 and thereafter filing a suit in O.S.No.104/2012, making the very same averments and contentions that were already raised by them in A.S.No.1999/2005, which was dismissed by the First Appellate Court on 10.10.2006 and confirmed by this Court on 27.01.2011 in S.A.No.1268 of 2006.
25.In the result, the Civil Revision Petition is dismissed as devoid of merits. No cost. Consequently, connected miscellaneous petition is closed.
vs To The District Munsiff Court Sholinghur