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1969 DIGILAW 28 (GAU)

Maibam Gokulchand Singh v. Hidam Ningol Maibam, Ongbi Tonsana Devi

1969-07-01

R.S.BINDRA

body1969
ORDER The facts bearing on this civil revision petition filed by Maibam Gokul Chand Singh are not in dispute and can be summarised in a few words. The respondent Hidam Ningol Maibam Ongbi Tonsana Devi, a widow, instituted Title Suit No. 8 of 1961 against the present petitioner Maibam Gokul Chand Singh and it was decreed on 1-5-1964. Tonsana Devi, the decree-holder, then sued out execution of the decree. In the mean time Gokul Chand Singh filed Title Suit No. 95 of 1964 challenging the validity of that decree. He (Gokul Chand Singh) also filed an application under Order 21, Rule 29, of the Civil Procedure Code (hereinafter referred to as the Code) on 9-11-1964, in that suit praying that the execution of the decree dated 1-5-1964 be stayed. The execution application filed by Tonsana Devi was dismissed in default on 5-12-1964, while the application filed by Gokul Chand Singh under Order 21, Rule 29 suffered the same fate on 20th of July 1965. Tonsana Devi instituted the second execution application in the year 1965. Gokul Chand Singh, not to be beaten, filed an application under Sections 47 and 151 of the Code on 30-11-1966 seeking the relief that until the disposal of his Title Suit No. 95 of 1964 the execution of the decree dated 1-5-1964 should be stayed. This application was rejected by the Trial Court on the short ground that stay could be directed only on the basis of an application made under Order 21, Rule 29 of the Code and the present application had not been filed under that provision of law. Aggrieved by that order of the trial Court Gokul Chand Singh has come up in revision to this Court, under Sections 115 and 151 of the Code. Another fact which requires mention at this stage is that suit No. 95 of 1964 instituted by Gokul Chand Singh has been dismissed by the Trial Court and an appeal against the decree of dismissal is pending decision in the Court of District Judge. 2. Shri Bhattacharjee, the learned counsel for the petitioner, made the submission, anticipating objection by the opposite counsel, that the provisions of Rule 29 can be availed of not only during the pendency of the suit but also during the pendency of the appeal arising out of the suit. 2. Shri Bhattacharjee, the learned counsel for the petitioner, made the submission, anticipating objection by the opposite counsel, that the provisions of Rule 29 can be availed of not only during the pendency of the suit but also during the pendency of the appeal arising out of the suit. To shore up this submission, the counsel urged that appeal is in fact a continuation of the suit and so there can possibly be no difficulty in interpreting Rule 29 in the manner canvassed by him. Shri N. Kerani Singh, representing Tonsana Devi, submitted on the other hand that the plain words of Rule 29 are not susceptible of the interpretation solicited by Shri Bhattacharjee, and emphasised in addition that at present no application by Gokul Chand Singh under Rule 29 is pending in the Court. He therefore prayed that the revision petition should be thrown out. I think the submissions made by Shri N. Kerani Singh are weighty and so must prevail. 3. Rule 29 of Order 21 of the Code is in the following terms : "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. " The underlined words (here in ) apparently do not lend support to the contention raised by Shri Bhattacharjee. He, however, placed reliance on the case of Mahesh Chandra v. Jogendra Lal, AIR 1928 Cal 222, to support the view that the word suit in the expression "pending suit has been decided" includes an appeal arising out of the suit in question. But this interpretation of Rule 29 was dissented from in a later case of the Calcutta High Court reported in AIR 1932 Cal 19, Radha Ballav v. Peary Lall, wherein it was held that a stay order made under Rule 29 will operate only until the disposal of the suit and not until the exhaustion of all rights of appeal arising out of that suit. This latter view of the Calcutta High Court was adopted by the Madras High Court in the case of Ramanathan v. Kasi Chettiar, AIR 1944 Mad 73. This latter view of the Calcutta High Court was adopted by the Madras High Court in the case of Ramanathan v. Kasi Chettiar, AIR 1944 Mad 73. According to Madras High Court, the expression "suit in Rule 29 means the suit and not the appeal or appeals arising therefrom. In the case of Radha Ballav, AIR 1932 Cal 19 (supra), the Calcutta High Court had relied upon the case, Bhagwan Kaur v. Harman Kaur of the Punjab Chief Court reported in (1910) 82 Pun Re 1910 : 7 Ind Cas 1017. Therefore, the proposition canvassed by Shri Bhattacharjee has to be rejected because it gathers no support from the judicial pronouncements. The interpretation placed by Calcutta and Madras High Courts on Rule 29 is indeed rational. The right given to a plaintiff by that Rule is of very exceptional nature, and if the claim made by him in the suit had been found, after a fair trial, to be without substance he is not entitled to any further indulgence in case he happens to file an appeal against trial Courts judgment and decree. 4. It was not denied by Shri Bhattacharjee that as at present no application under Rule 29 is pending in the trial Court. Such an application made by Gokul Chand Singh in the year 1964 was dismissed in default on 28th of July 1965. He took no steps for the restoration of that application, nor made any fresh application under Rule 29. The present revision petition is directed against the order dismissing an application made under Sections 47 and 151 of the Code. Section 151 will not apply because there is a specific provision enacted in Rule 29 under which Gokul Chand Singh could have moved the Court for staying the execution of the decree dated 1-5-1964. It is well settled that if a statutory remedy is available for a particular relief, recourse cannot be had to the provisions of Section 151 of the Code. An application under Section 47 can be moved in the executing court and not in the Court where the suit instituted by Gokul Chand Singh is now pending. It is not the contention of Shri Bhattacharjee that the application under Section 47 was moved in the executing court. An application under Section 47 can be moved in the executing court and not in the Court where the suit instituted by Gokul Chand Singh is now pending. It is not the contention of Shri Bhattacharjee that the application under Section 47 was moved in the executing court. Therefore, the trial court was perfectly justified in holding that the application under Sections 47 and 151 of the Code was not maintainable in connection with Suit No. 95 of 1964. 5. This revision petition merits rejection on another ground as well. The trial Court has held that the plaintiff can claim stay of execution of the decree only if he can show at least a prima facie case and not on the mere plea that he has filed a suit against his own decree-holder. The trial Court states further that Gokul Chand Singh had failed to convince him that the claim made by him in the suit was genuine. It cannot be denied that the power to stay execution under the rule is purely discretionary. The phraseology of the rule, especially the words "The Court may stay execution of the decree", admits of no doubt on that point. The discretion vesting in the Court it is evident has to be exercised on sound judicial principles and not capriciously. Shri Bhattacharjee, however, failed to convince me that the trial Courts verdict is arbitrary, infirm, or faulty. Hence, there looks to be no scope for interference with the impugned order. 6. As a result the revision petition fails and it is dismissed with costs. Advocates fee Rs. 20/-. 7. Announced. Revision dismissed.