Karnataka High Court
Smt. Sundra Bai And Ors. vs Smt. Sonubai on 25 February, 2004
Equivalent citations: AIR2004KANT336, ILR2004KAR1558, 2004(5)KARLJ619, AIR 2004 KARNATAKA 336, 2004 AIR - KANT. H. C. R. 1730, (2004) 18 ALLINDCAS 500 (KAR), 2004 (18) ALLINDCAS 500, (2004) ILR (KANT) (2) 1558, (2004) 5 KANT LJ 619, (2004) 3 RECCIVR 734, (2004) 3 ICC 458, (2004) 2 KCCR 1305
Author: H.G. Ramesh
Bench: H.G. Ramesh
ORDER
21 RULE 29 -- Stay of execution pending suit between decree holder and Judgment debtor - Powers of the Courts under - HELD -- Power is discretionary which should be exercised judicially -Mere satisfaction of pre-condition stipulated in Order 21 Rule 29 is not enough - The power under this rule has to be exercised only in exceptional cases -- Unless an extraordinary case is made out, execution proceedings cannot be stayed - The Executing Court has exercised its discretion Judicially - Hence, no interference under Article 226 - 227 of Constitution of India Dismissing the Revision, The Court Held:
The power to stay execution of the decree under Order 21 Rule 29 of CPC is discretionary. The discretion should be exercised judicially and not mechanically as a matter of course. On mere satisfaction of the pre-condition stipulated in Order 21 Rule 29 of CPC, the execution proceeding is not to be stayed. The power under this rule has to be exercised only in exceptional cases where the interest of justice requires it. The fundamental consideration should be that the decree holder is not to be deprived of the fruits of the decree except for good reasons. The decree must be allowed to be executed and unless an extraordinary case is made out, no stay should be granted.
ORDER H.G. Ramesh, J
1. This Writ Petition by the judgment debtors is directed against the order dated 19.1.2004 passed by the Executing Court rejecting IA-I filed by them under Order 21 Rule 29 of CPC for stay of further proceedings in Ex.Case No. 62/2003 on the ground of pendency of a suit in O.S. No. 314/2003 in the very same Court.
The aforesaid execution case was filed to execute the decree passed in O.S. No. 780 of 1990.
2. I have heard Mr. Ram Bhat, learned Senior Counsel for the petitioners and perused the impugned order. Mr. Ram Bhat, in support of his submission that the impugned order is erroneous has relied on a judgment of the Supreme Court in SHAUKAT HUSSAIN v. BHUNESHWARI DEVI and also a judgment of this Court in PUJARI SUBBAIAH v. LAKKAPPANAVARA.
3. To examine the correctness of the impugned order, it is relevant to notice the scope and ambit of Order 21 Rule 29 of CPC which reads as follows:
"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, instituted by the person against whom the said 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."
The power to stay execution of the decree under Order 21 Rule 29 of CPC is discretionary. The discretion should be exercised judicially and not mechanically as a matter of course. On mere satisfaction of the pre-condition stipulated in Order 21 Rule 29 of CPC, the execution proceeding is not to be stayed. The power under this rule has to be exercised only in exceptional cases where the interest of justice requires it. The fundamental consideration should be that the decree holder is not to be deprived of the fruits of the decree except for good reasons. The decree must be allowed to be executed and unless an extraordinary case is made out, no stay should be granted. As held by the Supreme Court in KRISHNA SINGH v. MATHURA AHIR , the jurisdiction to stay execution of the decree under Order 21 Rule 29 of CPC has to be exercised with very great care and only in special cases.
4. A perusal of the impugned order would show that the Executing Court on a consideration of all the relevant aspects has declined to stay further proceedings in the Execution case. On the facts of the case, I am satisfied that the executing Court has exercised its discretion judicially and the discretion exercised cannot be said to be arbitrary or capricious to call for interference under Article 226 and 227 of the Constitution of India.
5. At this stage, Mr. Rambhat, learned Senior Counsel submits the certain observations made by the Trial Court in the course of the impugned order would prejudice the suit in O.S. No. 314/2003. Without going into the correctness of the said submission. I direct the Trial Court to dispose of O.S. No. 314/2003 without being influenced by the observations made in the course of the impugned order.
6. In the result, the petition fails and is hereby dismissed. No costs.