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Madhya Pradesh High Court · body

1978 DIGILAW 230 (MP)

Khurshed v. Maheshchandra

1978-03-17

B.R.DUBE

body1978
Short Note : 1. The non-applicant had filed Civil Original Suit No. 71 of 1975 against the applicants for the recovery of his salary mounting to Rs. 5,470.10 p. upto the 15th June 1975. An ex parte decree was passed against the applicants on 18-1-1978. The applicants submitted an application under Order 9, rule 13 CPC for getting that decree set aside which was pending. The non-applicant in the meanwhile sought execution of the ex parte decree passed in his favour. The applicants filed an application for stay of the said execution. The Executing Court while disposing of that application directed the applicant to deposit the decretal amount in the Court and allowed the non-applicant decree-holder to withdraw the said amount on furnishing solvent security. Thereafter the applicants filed Civil suit No. 24-B of 78 against the non-applicant for the recovery of Rs. 7,378 and submitted an application under Order 21, rule 29 read with S. 151 CPC before the Executing Court for stay of the Execution proceedings till the disposal of the case No. 24-B of 1978. The Executing Court, after hearing the parties modified its earlier order and directed the applicants to deposit Rs. 3,500 in the Court and asked them to furnish security for the decretal amount. It was also directed that the non-applicant was at liberty to withdraw the said amount of Rs. 3,500 on furnishing solvent security. Held : It is clear that the Executing Court has got a wide discretion to stay the execution pending another suit between the decree-holder and judgment-debtor on such terms as it thinks fit Initially the Executing, court directed the applicants to deposit the full amount of Rs. 5,470 which was decreed against them. It appears that in the suit filed by the applicants against the non-applicant it, was alleged that he had received a sum of Rs. 1.592.50 p. from the Collector towards his salary and still he obtained the decree for the whole amount which he claimed to be due by way of salary including the amount which he had already received. The applicant therefore in that suit claimed the cancellation of the decree which was passed in Civil suit No. 71 of 1975 with respect to part of the decretal amount to the tune of Rs. 1,592.50. The applicant therefore in that suit claimed the cancellation of the decree which was passed in Civil suit No. 71 of 1975 with respect to part of the decretal amount to the tune of Rs. 1,592.50. It appears, that in view of the said allegations the Executing Court modified the earlier order and directed the applicants to deposit only a sum of Rs. 3,500 in the Court. The contention of the learned counsel for the applicants that the Executing Court either could have stayed the execution as a whole or could have dismissed the application for stay of the execution in exercise of the discretion under Order 21, rule 29 CPC but the execution of the decree in part could not have been stayed. In the opinion of this Court, this contention has no force. The language of Order 21, rule 29 does not put any fetter in exercising the discretion by the Court as regards the stay of execution. The decree passed against the applicants is executable till it is satisfied. The non-applicant is allowed to withdraw the amount of Rs. 3,500 on furnishing security and hence in case any decree for a larger amount is passed in CS No. 24-B of 78 against the non-applicant and the question of adjustment arises before the Executing Court the non-applicant can be compelled to refund the amount which he has already received in execution. If his decree in CS No. 71 of 1975. Therefore, the impugned order of the Executing Court cannot be called to be unjust or improper. Revision dismissed.