Andhra Pradesh High Court - Amravati
Poola Dasari Naganna vs Khatravath Hussainamma on 27 March, 2025
APHC010425802024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3311]
(Special Original Jurisdiction)
Thursday, the Twenty Seventh day of March
Two Thousand and Twenty Five
Present
The Honourable Ms Justice B.S.Bhanumathi
Civil Revision Petition No: 2284 of 2024
Between:
Poola Dasari Naganna ...petitioner
and
Khatravath Hussainamma ...respondent
Counsel for the petitioner:
1. Challa Sivasankar
Counsel for the respondent:
1. Varun Byreddy
The Court made the following:
2
C.R.P.No.2284 of 2024
ORDER:
The civil revision petition is filed under section 115 of C.P.C. against the order dated 14.08.2024 dismissing the petition in E.A.No.36 of 2024 in E.P.No.106 of 2021 in O.S.No.410 of 2011 on the file of the Court of Additional Civil Judge (Senior Division), Kurnool filed by J.Dr under Order XXI, rule 29 CPC to stay the execution proceedings till disposal of the appeal on the file of the Court of VII- Additional District Judge, Kurnool.
02. The case of the petitioner before the trial Court in E.A.No.36 of 2024 is briefly as follows:
The suit in O.S.No.410 of 2011 was filed by the plaintiff / respondent herein for recovery of sum of Rs.5,19,750/- founded on promissory notes dated 01.05.2010 executed by the defendant / revision petitioner for Rs.2,00,000/- and Rs.2,50,000/-. The revision petitioner / J.Dr filed E.A.No.36 of 2024 in E.P.No.106 of 2021 in O.S.No.410 of 2011 seeking stay of execution petition stating that as the matter was posted to 11.04.2024 for the evidence of J.Dr, at the time of preparation of the affidavit of J.Dr in chief-examination, the petitioner came to know that the D.Hr intentionally lied in the cross- examination, in spite of receipt of the notice in the appeal in A.S.No.07 of 2023 on the file of the Court of VII-Additional District Judge, Kurnool. The petitioner obtained certified copy from the appellate Court and found that the D.Hr had received the notice of the appeal and stay petition prior to 15.04.2023, but she has not filed counter in the stay petition to drag on the matter with an ulterior motive to obtain orders in the execution petition. Therefore, it is necessary to grant stay of the proceedings.3 C.R.P.No.2284 of 2024
03. The respondent / D.Hr filed counter opposing the petition stating briefly as follows:
The petitioner is a petition monger and has been filing false, frivolous and vexatious petitions only to defeat the claim of the D.Hr by procrastinating the proceedings. As there is no sufficient ground, the appellate Court has not granted stay in the appeal and the proceedings in execution cannot be stayed. There cannot be two simultaneous proceedings pending between the same parties and there are no merits in the petition.
04. After hearing both the parties, the execution Court dismissed the petition observing that a reading of Order XXI, rule 29 CPC shows that when any interlocutory application like the petition under Order IX, rule 13 C.P.C. is pending in the suit, till disposal of such application, the execution proceedings can be stayed, but in the present case, no such application before the trial Court is pending and moreover the decree was passed in the suit on contest. It is further held that the only ground stated by the petitioner is pendency of the appeal which is not a ground under Order XXI, rule 29 C.P.C. and that if the appeal is pending, the petitioner has to seek stay before the appellate Court.
05. Aggrieved by the order of the trial Court, this revision petition was filed.
06. The learned counsel for the petitioner submitted that the revision petitioner deposited 50% of the amount decreed along with the suit costs as was directed by this Court on 18.10.2024 in I.A.No.1 of 2024. He further submitted that the appellate Court had not granted order of stay of the decree and judgment challenged in the appeal 4 C.R.P.No.2284 of 2024 and had not heard the appeal which is causing hardship to the revision petitioner / petitioner / J.Dr / defendant who filed the appeal. He further submitted that unless interim stay is granted, the purpose of filing the appeal would be lost if the decree is completely executed.
07. The learned counsel for the respondent submitted that no relief as claimed can be granted under Order XXI, rule 29 C.P.C. and that there is no ground to interfere with the impugned order.
08. Order XXI, rule 29 C.P.C. reads as follows:
"Stay of execution pending suit between decree-holder and judgment-debtors.-
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."
09. It is pertinent to mention the decision of the High Court of Madras in Balammal and others vs. Muthiar Begum and another1, wherein at paragraph No.21 it is held as follows:
12013 (5) CTC 154 5 C.R.P.No.2284 of 2024 "Further, under Order XXI, Rule 29, C.P.C., 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."
10. A reading of the above provision makes it abundantly clear that the petitioner cannot seek the relief on the grounds stated in the petition. If at all the petitioner is likely to be prejudiced in the event of succeeding in the appeal, if the decree is fully executed before disposal of the appeal, the petitioner shall take immediate steps to get the interlocutory application before the appellate Court in A.S.No.7 of 2023 to be disposed of on merits or get the appeal itself disposed of on merits.
11. The observation of the trial Court that Order XXI, rule 29 C.P.C. can be resorted to in the circumstances such as pendency of application under Order IX, rule 13 C.P.C. is erroneous. The requirement to seek the relief under Order XXI, rule 29 C.P.C. is to show that a suit against the decree holder is pending in the Court, whereas in the example given by the execution Court, the pending suit would be filed by the decree holder / plaintiff, but not against the decree holder. Since the revision petitioner is not entitled to the relief under Order XXI, rule 29 C.P.C., irrespective of the observation of the execution Court, the revision petitioner is not entitled to the relief sought in the petition before this Court.
6 C.R.P.No.2284 of 202412. In the result, the revision petition is dismissed. It is open to the petitioner to seek appropriate relief before the appellate Court in A.S.No.07 of 2023 as observed above. There shall be no order as to costs.
Interim orders granted earlier, if any, shall stand vacated.
Pending miscellaneous applications, if any, shall stand closed.
________________________ JUSTICE B.S.BHANUMATHI Date: 27.03.2025 GRL/NSM 7 C.R.P.No.2284 of 2024 HON'BLE Ms. JUSTICE B.S.BHANUMATHI Civil Revision Petition No: 2284 of 2024 Date: 27.03.2025 GRL/NSM