Madhya Pradesh High Court
Toran Singh vs Deveendr Patel on 28 January, 2026
1 MP-2965-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 28th OF JANUARY, 2026
MISC. PETITION No. 2965 of 2021
TORAN SINGH AND OTHERS
Versus
DEVEENDR PATEL
Appearance:
Shri Pradeep Kumar Bhargava & Shri Rajesh Kumar Patel-Advocates
for the petitioners.
Shri Sanjay Sarwate-Advocate for the respondent.
ORDER
The present position has been filed challenging the order passed by the Executing Court dated 04.02.2020, thereby the Executing Court has rejected the application for stay of execution proceedings under Order 21 Rule 26 and 29 CPC and has decided to proceed ahead with the execution proceedings. This court, while entertaining the petition, had stayed the execution proceedings and the said stay is prevailing since 21.10.2021.
2. It is vehemently contended by the counsel for the petitioners/ judgment debtors that there is a decree for specific performance in favour of the respondent, and the said decree was passed on 29.02.2016, but the present petitioners/ judgment debtors have already filed a suit before the civil court for setting aside the said judgment and decree, and the said suit has been registered as RCSA No. 68 of 2019 and therefore, once the subsequent Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:30 2 MP-2965-2021 suit is pending between the same parties which is filed by the judgment debtors against the decree holder, therefore by exercising jurisdiction under Order 21, Rule 26 and 29 CPC, the executing court ought to have stayed the execution of decree of specific performance, because the provisions of Order 21 Rule 26 and 29 are mandatory in nature.
3. The learned counsel for the petitioners has further argued that recently the petitioners/judgment debtors have also filed an application for review of the judgment and decree dated 29.02.2016 which has been filed on 11-11-2025 which is also pending and therefore, once subsequent suit is pending and a review petition against the original judgment and decree is also pending, therefore the proceeding for execution be stayed.
4. Per contra, learned counsel for the respondents-decree holder has argued that the law cannot stop any person from filing successive suits and review petitions, and mechanical stay cannot be granted on execution proceedings. It is argued that this case was not a fit case to grant stay on execution proceedings, and therefore the executing court has not erred in rejecting the application under Order 21 Rule 26 and 29 CPC.
5. Heard learned counsel for the the parties and perused the record.
6. In the present case the petitioners seek benefit of Order 21, Rule 29 CPC on the ground that their review petition against the original judgment and decree is pending as well as their subsequent suit is pending. During course of argument, another point was pressed that the petitioners want to refund the amount of advance, though it was admitted that the decree is not for refund of amount of advance, but it is for specific Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:30 3 MP-2965-2021 performance. Therefore this court does not deal with that assertion, as no assertion going behind the decree can be considered in these proceedings.
7. The suit was decreed on 29-02-2016 and the execution proceedings were instituted in the year 2017 while the subsequent suit has admittedly been filed by the petitioners/ judgment debtors in June 2019.The subsequent suit is for cancellation of judgment and decree dated 29.02.2016 and admittedly no appeal against the judgment and decree has been filed by the judgment debtors. Even the suit for cancellation of judgment and decree dated 29.02.2016 has been filed more than 3 years after passing of the judgment and decree, which is even almost 2 years after filing of the execution proceedings.
8. The jurisdiction under Order 21 Rule 26 and 29 is not mandatory in nature and the Executing Court is not bound mechanically to stay the execution on filing of any judicial proceedings in terms of the said provisions. If that happens, then it would lead to an endless process and no decree would ever be executed. For ready reference Order 21, Rule 26 and 29 are reproduced which are as under:-
ORDER XXI Execution of Decrees and Orders Payment under Decree:
26. When Court may stay execution.--(1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree 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 in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto. (2) Where the property or person of the judgment-debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application.Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:30
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29. 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.]
9. The issue that whether a suit filed subsequent to passing of the decree and even subsequent to filing of execution petition can be pressed into service to stay the execution proceedings, has been considered by various High courts at different points of time. The Madras High court in case of Balammal v. Muthiar Begum, 2012 SCC OnLine Mad 4627 has held that to invoke jurisdiction under Order 21 Rule 29 CPC, one of the primary conditions is that there must be simultaneous proceedings and a suit filed subsequent to filing of the execution proceeding cannot be said to be simultaneous proceedings.
10. The aforesaid judgment was considered in detail by the Allahabad High Court in Deepak v. Distt. Judge, Hardoi, reported in 2023 SCC online Allahabad 1481 and it was held by the Allahabad High Court that the power under Order 21 Rule 29 is not to be exercised in cursory or mechanical manner but only in exceptional circumstances and only when a suit against a decree holder is pending at the time of filing of execution petition and applying the aforesaid provisions to suit file subsequent to execution proceedings would lead to absurd results whereby no decree of any court can ever be satisfied. The Allahabad High Court agreed with the reasoning of Madras High Court and another Judgment of the Karnataka High Court which was in similar terms.Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:30
5 MP-2965-2021 "24. Although the provisions of Order XXI Rule 29 of the Code empower the Executing Court to stay the execution of decree, at the same time, it is evident that such a power is not to be exercised in a cursory or mechanical manner but in exceptional circumstances only when a Suit against the decree holder is pending consideration at the time of filing of execution. Applying the aforesaid provisions to Suits filed subsequent to execution proceedings would lead to absurd results whereby no decree of any Court of competent jurisdiction can ever be satisfied. This cannot be the meaning and purpose of Order XXI Rule 29 of the Code particularly keeping in view the specific provisions of Rule 29 of the Code itself which indicates that a Suit should be pending against the holder of a decree or of a decree which has been executed. The obvious conclusion of the word 'pending' is that the Suit against the judgment decree holder should be pending as on the date of institution of execution. This Court is in respectful agreement with the judgments rendered by the High Courts of Madras and Karnataka.
25. Another aspect to be considered is that Hon'ble the Supreme Court in the case of Satyawati (supra) deprecated unreasonable delays in execution of decrees rendered by Courts of competent jurisdiction in the following manner:
--
"14. This Court, again in the case of Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. [(1999) 2 SCC 325] was constrained to observe in para 4 of the said judgment that "4. .....it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes long time....."
16. As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain."Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:30
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26. It is also relevant to indicate that any person having an interest in the Suit property with regard to which a decree has been passed has a remedy not only under Section 47 but also under Rule XXI Rules 97 to 104 of the Code due to which also the provisions of Order XXI Rule 29 of the Code are required to be used only in exceptional circumstances.
27. With regard to reliance placed upon U.P. Judicial Services Rules, 2001 is concerned, it is quite evident that the same pertains to service regulation of judicial officers, which would be administrative in nature and by no stretch of imagination can be deemed to include judicial proceedings as has been submitted.
28. So far as the judgments relied upon by learned counsel for the petitioner are concerned, reading of the same makes it evident that the same have been passed only on the ground that the trial Court had passed orders impugned therein without considering the provisions of Order XXI Rule 29 of the Code and therefore the petition had been allowed remanding the cases for fresh consideration in terms of the said provision. A reading of the aforesaid judgments makes it evident that no proposition of law nor any ratio decidendi is evident in the aforesaid judgments and as such in the considered opinion of this Court would not have any binding nature.
29. This Court as such is in respectful agreement with the summary of principles pertaining to Order XXI Rule 29 of the Code as indicated herein-
above in the case of Sikandar Mohammad Ali Dalal (supra) by the High Court of Karnatka.
30. In view of the aforesaid discussion, the provisions of Order XXI Rule 29 of the Code being inapplicable in the present facts and circumstances of the case, no exception can be taken to the orders impugned."
11. The issue was again considered by the High Court of Delhi in Naresh Kumar Jain v. Rishab Sharma , reported in 2025 SCC online Delhi 9274 and the Delhi High Court agreed with the reasoning of Madras High Court, Karnataka High Court and the Allahabad High Court and agreed with the proposition that the suit by the judgment debtors against a decree holder must be pending consideration at the time of filing of execution. The Delhi High Court held as under:-
Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:307 MP-2965-2021 "9. In the case of Deepak (supra), the learned Single Judge traversed through the view taken in similar situations by different High Courts including Madras High Court and Karnataka High Court as well as by the Hon'ble Supreme Court, all of whom are of consistent view that where the declaratory or other suit, benefit whereof is claimed by a Judgment Debtor, is filed subsequent to the initiation of execution proceedings, the latter cannot be stayed. The learned Single Judge in the said case observed thus:
"12. A perusal of Order XXI Rule 29 of the Code makes it evident that the same would be applicable in case 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 a person against whom the decree is passed or any person whose interest is affected by the decree or any order made in execution thereof (as per Allahabad amendment).
13. The aforesaid aspects of 'such Court' has been defined by Hon'ble the Supreme Court in the case of Shaukat Hussain @ Ali Akram v. Bhuneshwari Devi (Dead) by LRs., (1972) 2 SCC 731 in the following manner:
"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 decreeholder. 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. 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 Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:30 8 MP-2965-2021 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."
1 9 . The aspect of the word 'where the Suit is pending' is also of particular importance since the same connotes that a Suit filed against holder of a decree of such Court should be pending as on the date when decree is sought to be executed which has also been considered by High Court of Madras in the case of Balamnal (supra) in the following manner:--
"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."
2 0 . In the aforesaid case also it is evident that execution proceedings were filed prior to institution of Regular Suit against the decree holder and in such circumstances, High Court at Madras has held that the same would not come within the definition of 'simultaneous proceedings' so as to invoke Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:30 9 MP-2965-2021 provisions of Order XXI Rule 29 of the Code .
...........
24. Although the provisions of Order XXI Rule 29 of the Code empower the Executing Court to stay the execution of decree, at the same time, it is evident that such a power is not to be exercised in a cursory or mechanical manner but in exceptional circumstances only when a Suit against the decree holder is pending consideration at the time of filing of execution. Applying the aforesaid provisions to Suits filed subsequent to execution proceedings would lead to absurd results whereby no decree of any Court of competent jurisdiction can ever be satisfied. This cannot be the meaning and purpose of Order XXI Rule 29 of the Code particularly keeping in view the specific provisions of Rule 29 of the Code itself which indicates that a Suit should be pending against the holder of a decree or of a decree which has been executed. The obvious conclusion of the word 'pending' is that the Suit against the judgment decree holder should be pending as on the date of institution of execution. This Court is in respectful agreement with the judgments rendered by the High Courts of Madras and Karnataka."
(emphasis supplied)
10. I am in respectful agreement with the view taken by the learned Single Judge of the Allahabad High Court in the above cited judicial pronouncement.
12. This court does not find any good reason to take any different view from the view taken by the Delhi High Court, Madras High Court, Allahabad High Court and Karnataka High Court in holding that the other proceedings against the decree holder must be pending at the time of filing of the execution petition because any other interpretation would lead to absurd and drastic results and no decree would ever be executed and satisfied, if any other interpretation is made.
13. So far as the other ground that review petition against the original judgment and decree is pending, the said also deserves to be discarded for the same reason that the review proceedings have been filed on 11-11-2026 against the decree dated 29-02-2016 after 10 years of the decree, and this is nothing but an attempt by the judgment debtors to misuse and Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:30 10 MP-2965-2021 abuse the remedies given under the law just to deny the execution of the decree.
14. Consequently, finding no error in the impugned order passed by the executing court, the petition is dismissed. Executing court is requested to expedite execution proceedings and conclude within 4 months.
(VIVEK JAIN) JUDGE MISHRA Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 31-01-2026 13:42:30