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1992 DIGILAW 401 (KER)

Glorphis James v. Dena Bank

1992-10-23

GUTTAL

body1992
Judgment :- Dena Bank, East Fort, Trivandrum, filed two suits against the petitioner Glorphis James. In suit No.77 of 1985 which was for recovery of Rs.4,44,984.50 a decree for recovery of part of the" amount was passed against which an appeal is pending. In Suit No.152 of 1985 the court passed decree on 25-6-1986 against the petitioner for recovery of Rs.1,13,765.81. The decrees in these suits were made by the Ilnd Addl. Subordinate Judge, Trivandrum. An application for execution of the decree in O.S.152 of 1985 is pending in the court of Ilnd Addl. Subordinate Judge, Trivandrum. Thus the petitioner herein is the judgment-debtor and the respondent Dena Bank is the judgment creditor, in respect of the decree in O.S.152 of 1985. While the execution petition is pending the petitioner filed a suit in forma pauperis which is registered as O.P. (Paup) No.235 of 1987. The Pauper suit is pending in the court of the Ilnd Additional Subordinate Judge, Trivandrum. The enquiry into pauperism is not yet complete. The petitioner filed I.A.No.3306 of 1987 in O.P. (Paup) No. 235 of 1987 for stay of execution of the decree in O.S.152 of 1985. The learned trial judge rejected the application, inter alia, on the ground that the petitioner should have filed application for stay "before the executing court itself. 2. Admittedly the suit in forma pauperis is "against the holder of a decree" in O.S.152 of 1985. Dena Bank is the holder of a decree of "such court" meaning thereby the court in which the suit is pending viz. the subordinate court, Trivandrum. The suit subsequently instituted and registered as O.P. (Paup) No. 235 of 1987 by the judgment debtor in O.S.152 of 1985 is against the "holder of a decree of such court." The subsequently instituted suit O.P. (Paup) No.235 of 1987 in which an order of stay is sought is pending in the same court which made the decree sought to be executed. The question is whether, on these facts, the application for stay - I.A.No.3306 of 1987 was properly instituted. 3. Counsel for the petitioner urged that since the decree whose execution is sought to be stayed was made by the same court in which the suit is pending, the case clearly falls within R.29 of Order 21 of the Code of Civil Procedure. 3. Counsel for the petitioner urged that since the decree whose execution is sought to be stayed was made by the same court in which the suit is pending, the case clearly falls within R.29 of Order 21 of the Code of Civil Procedure. The learned judge has held that such an application should have been filed in execution meaning thereby that the stay under 0.21 R.29 can be granted only by the court which is seized of the execution petition. R.29 of 0.21 of the Code has these ingredients: (a) the suit must be pending in any court, (b) the suit must be against the holder of a decree, (c) the decree must have been made by the court before whom the suit is pending. There is no reference to the status of the court as the court "trying" the suit and the court "executing the decree". The language of R.29 of 0.21 of the Code admits of no such distinction. It is therefore immaterial whether the application for stay is made on the execution side or on the original side (M/s. Khemchand Rajmal v. Rambabu Johrimal, AIR 1958 M.P.131). All that need be proved is the identity of the court which passed the decree and the court in which the suit is pending. Again it is immaterial as to whether the two proceedings are pending before different judges of the same court. Suppose the suit is filed before Ilnd Addl. Sub Judge, Trivandrum, and the execution is pending before the 1st Addl. Sub Judge, Trivandrum. Even in such cases the two judges being judges of the same court both the proceedings must be held to be pending in the same court (Narsidas Nathubhai Vohra v. Man-harsingh Agarsingthakor, AIR 1931 Bom. 247; M/s. Khemchand Rajmal v. Rambabu Johrimal, AIR 1958 MP 131; Raghvender Rao v. Botlagunta Laxminarasayya, AIR 1962 Mys. 89). 4. Learned counsel for the respondent drew my attention to Krishna Singh v. Mathura Ahir (AIR 1982 SC 686) Supreme Court has no application to the facts of this case. Admittedly the suit is pending in the same court by which the decree against the petitioner was made. This establishes the identity of the two courts as required by R.29 of 0.21 of the Code. Admittedly the suit is pending in the same court by which the decree against the petitioner was made. This establishes the identity of the two courts as required by R.29 of 0.21 of the Code. The case of Krishna Singh (Krishna Singh v. Mathura Ahir, AIR 1982 SC 686), has no application because the decree was passed by the Munsiff, Varanasi, but the suit in which the application for stay was made was instituted before the Civil Judge, Varanasi. This distinction has been brought out in the judgment of the Supreme Court. 5. The argument of counsel for the respondent is that'R.29 of 0.21 of the Code has no application. According to him, "where a suit is pending in any Court against the holder of a decree of such court" refers to the court in which execution petition is filed. According to him, R.29 of Order 21 enables only the executing court to grant stay. Rule 29 of Order 21 makes no distinction between the execution side or the trial side of a court. All that it requires is that a suit should be pending in a court which made the decree sought to be executed. Once the identity of the two courts is established it is immaterial whether the application for stay is made to the court in its capacity as executing court or in its capacity as the court trying a suit. All that is necessary is that the order of stay must be passed "by such Court", viz. the Court which passed the decree and in which the suit is pending (Smt. Ramkumari Debi v. Tarkeshwar Nath Pandey & others (AIR 1975 pat. 110). 6. The reason why the law requires identity of the two courts has been explained by the Madras High Court in the case of Kannaminal (Kannammal v. Muthukumarswami Chetty, AIR 1936 Mad. 102). The object of the rule is that, should the plaintiff in a pending suit succeed, then there can be an adjustment of the decree or claim by that plaintiff against the decree made by the same court against him in the other suit, without it being necessary for the successful plaintiff in the pending suit to take out execution proceedings. Execution in the other suit is stayed so that the rights of the parties can be adjusted. Execution in the other suit is stayed so that the rights of the parties can be adjusted. In cases where it is likely that the decree-holder in the other suit may take steps, which might deprive the plaintiff in the pending suit of the fruits of any decree, which he obtains, an order staying the execution in the other suit should be made. The rule is not an imperative one; and the Court has a discretion either to grant the prayer for stay or to refuse it. 7. For all these reasons the petition is allowed. The impugned order dated 11th September 1991 made by the Hnd Addl. Sub Judge in I.A.No.3306 of 1987 in O.P. (Paup) No.235 of 1987 is set aside. The proceedings are remitted to the trial judge. He shall consider the I.A.No.3306/1987 afresh and dispose it off in accordance with law. The parties shall appear before the trial court on 10th November 1992.