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2001 DIGILAW 191 (HP)

SUDERSHANA DEVI v. TULSI RAM

2001-08-13

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—This revision petition under Section 115 of the Code of Civil Procedure (here-after referred to as the Code) has been preferred by the petitioner against the order dated 21.9.2000 passed by the learned Sub-Judge (2), Shimla whereby an application moved by the petitioner under Order 21 Rule 29 read with Section 151 of the Code in Execution Petition No. 36/10 of 1996 has been dismissed. 2. Brief facts leading to the presentation of this petition are that respondent/decree holder Tulsi Ram has filed an execution petition in the Court below seeking execution of a decree passed in his favour on 25.9.1991 in Civil Suit No. 60/1 of 1987 for possession of Shop No. 7, situate at Chhota-Shimla Bazar. The judgment debtors filed an application under Order 21 Rule 29 of the Code before the executing Court for stay of the execution proceedings on the ground that their suit titled Vidya Devi and others v. Tulsi Ram and others, being Civil Suit No. 219/ 1 of 1992 is pending disposal in the executing Court and in case the execution proceedings are not stayed, the judgment debtors would suffer irreparable loss and injury incapable of being compensated in terms of money and it would also lead to multiplicity of litigation and the suit instituted by the judgment debtors will become infructuous. The decree holder/respondent No, 1 contested the application by filing a reply thereto in which the took the preliminary objections that the application was not maintainable, there is no cause of action to file such application and JDs are estopped by their act and conduct from filing the application. On merits, it was averred that the decree holder/respondent No. 1 has obtained a decree after filing a suit under Section 6 of the Specific Reliefs Act but the execution of the decree is being delayed by the judgment debtors on one pretext or the other. The pendency of the suit, however, has not been disputed but it has been claimed that there is no case for grant of stay as prayed for. After hearing the parties, the trial Court dismissed the application by the impugned order. The pendency of the suit, however, has not been disputed but it has been claimed that there is no case for grant of stay as prayed for. After hearing the parties, the trial Court dismissed the application by the impugned order. It is admitted case of the parties that the suit instituted by the petitioner has been dismissed by the trial Court after the passing of the impugned order but the petitioner has preferred an appeal against the judgment and decree passed by such Court. The said appeal is pending disposal. 3. I have heard the learned Counsel for the parties and have also gone through the records. 4. Rule 29 of Order 21 of the Code reads as follows: "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." 5. It is evident from the expression that the Court may stay the execution of a decree as used in the Rule ibid that the power to stay execution under this Rule is discretionary and such discretion has to be exercised judicially and not mechanically as a matter of course. One of the most important consideration for sound exercise of judicial discretion under this Rule will be that once a decree has been obtained by a party he should not be deprived of the fruits of that decree except for good reasons. 6. In the case in hand, the decree, which the respondent No. 1 is seeking to execute, is a decree for restoration of possession of the premises to him under Section 6 of the Specific Relief Act. Said section reads as follows: "6. Suit by person dispossessed of immovable property.—(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Said section reads as follows: "6. Suit by person dispossessed of immovable property.—(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought:— (a) after the expiry of six months from the date of dispossession, or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof." 7. From the frame of Section 6 ibid it is clear that it is intended to provide a summary, cheap and useful remedy to a person dispossessed of immovable property otherwise than in due course of law and its object is to discourage people from taking the law into their own hands however good their title may be. In view of the said intendment and object, execution of a decree passed under Section 6 ibid cannot be mechanically stayed. It is, moreso, keeping in view the fact that the remedy of the party who claims to be entitled to the possession on the basis of title is not barred from seeking lawful remedy for possession and may sue to establish his title to such property and to recover possession thereof. Thus, the petitioner, if establishes his title to the properties, will be entitled to recover the possession thereof as provided under sub-section (4) of Section 6 ibid. This being the legal position, the Executing Court has rightly exercised its discretion in not staying the execution proceedings. 8. Thus, the petitioner, if establishes his title to the properties, will be entitled to recover the possession thereof as provided under sub-section (4) of Section 6 ibid. This being the legal position, the Executing Court has rightly exercised its discretion in not staying the execution proceedings. 8. The scope of interference by the High Court in the orders passed by a Court subordinate to it is quite narrow and such powers can be exercised only if it is shown that the Court in passing the impugned order has exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction which vested in it or has acted in the exercise of its jurisdiction illegally or with material irregularity and that the order so passed if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it has been made. However, as already stated herein-above, in view of the provisions of Section 6 ibid the Court below has exercised its discretion under Order 21 Rule 29 of the Code legally and property Hence, the impugned order does not call for any interference by this Court in exercise of its revisional jurisdiction. 9. It may also be pointed out that it is not disputed that the petitioner had filed an application under Order 21 Rule 29 read with Section. 151 of the Code on 2.9.1997 in the Executing Court. A perusal of the said application and the application dated 13.9.2000 on which the impugned order has been passed reveals that both these applications had been moved for stay of execution of the decree on the ground that a suit of the petitioner for declaration of title and challenging the validity of the decree sought to be executed was pending. The earlier application dated 2.9.1997 was dismissed by the Executing Court on 9.4.1998 by a detailed speaking order. This order had admittedly not been challenged. Thus, the order dated 9.4.1998 dismissing the application under Order 21 Rule 29 of the Code has become final between the parties. Therefore, the second application dated 13.9.2000, in which the impugned order has been passed, was not competent and maintainable on the same and similar ground. The impugned order dismissing such application, for this reason also does not call for any interference by this Court. 10. Therefore, the second application dated 13.9.2000, in which the impugned order has been passed, was not competent and maintainable on the same and similar ground. The impugned order dismissing such application, for this reason also does not call for any interference by this Court. 10. It may be pointed out that moving of the second application for stay of execution on the same and similar ground on which the earlier application was filed and stood dismissed by a detailed speaking order is sheer misuse of the process of law and Court which must be deprecated. 11. As a result, this revision merits dismissal and is accordingly dismissed with costs quantified at Rs. 1,500. 12. Parties through their counsel are directed to appear before the Executing Court on 10.9.2001. Revision dismissed. -