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2011 DIGILAW 1237 (KAR)

Harshad K. Patel v. S. V. Srinivasa Rao

2011-12-19

B.V.NAGARATHNA

body2011
ORDER B.V. Nagarathna, J. 1. Though this writ petition is posted for preliminary hearing, with the consent of both sides, it is heard finally. In this writ petition, the petitioner who is the plaintiff in O.S. No. 6270/2003 had filed an application under Order XXI, Rule 29 read with Section 151 of the Code of Civil Procedure. The said application has been dismissed by order dated 02.09.2011. It is against the said order that this writ petition has been filed. 2. The relevant facts of the case are that the petitioner herein has filed O.S. No. 6270/2003 seeking recovery of a sum of ` 1,03,35,316/- with interest at the rate of 21% per annum from the respondent. The said suit is pending at the stage of evidence. On the other hand, the respondent herein had filed O.S. No. 6867/1996, which was a suit for specific performance of agreement dated 11.06.1996. By a judgment and decree dated 25.01.2003, the relief for specific performance was rejected but it was ordered that the defendant in the said suit that is the petitioner herein, shall pay a sum of ` 65,08,342/- with interest at 9% from 11.06.1996 till the date of realisation to the respondent herein. As against the said judgment and decree, both the parties preferred R.F.A. Nos. 328/2003 and 330/2003 before this Court. The said appeals were dismissed. It is also stated that as against the dismissal of the said appeals, S.L.P. No. 36044/2010 was filed by the respondent herein. The said petition has also been dismissed. Subsequently, the respondent herein has filed Execution No. 485/2011 which is pending before the trial Court. When the matter stood thus, in O.S. No. 6270/2003, the petitioner herein filed an application under Order XXI, Rule 29 read with Section 151 of the Code of Civil Procedure seeking stay of the decree passed in O.S. No. 6867/1996 dated 25.01.2003 as affirmed by this Court as well by the Apex Court. The said application has been dismissed. Being aggrieved by the said order that the petitioner has filed this writ petition. 3. I have heard the learned Counsel for the petitioner and the learned Counsel for the respondent and perused the materials on record. 4. It is not in dispute that the respondent herein had borrowed certain sums of money from Indian Overseas Bank and the petitioner herein was the guarantor to the said loan. 3. I have heard the learned Counsel for the petitioner and the learned Counsel for the respondent and perused the materials on record. 4. It is not in dispute that the respondent herein had borrowed certain sums of money from Indian Overseas Bank and the petitioner herein was the guarantor to the said loan. The said Bank had filed O.A. No. 1071/1997 and the said application was decreed by the Debt Recovery Tribunal. In pursuance of the said decree, the bank sought recovery of the amount. The petitioner as the guarantor had paid certain sums of money during the recovery proceedings initiated by the Bank. It is in that context that the petitioner has filed O.S. No. 6270/2003 seeking recovery of certain sums of money from the respondent herein. Since the respondent has also obtained a decree as against the petitioner and the said decree is sought to be executed, the petitioner herein has filed the application under Order XXI, Rule 29 of the Code of Civil Procedure seeking stay of the judgment and decree passed in O.S. No. 6867/1996. 5. Order 21, Rule 29 of the Code of Civil Procedure states that: "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." The said Rule has been amended by the Karnataka amendment and for the words 'on the part of the person against whom the decree was passed' following words namely 'instituted by the person against whom the said decree was passed' have been substituted. The object of Rule 29 of Order XXI is ultimately to adjust the outstanding amount between the parties so that one party who has obtained a decree against the other party is not doubly benefited by seeking to execute the said decree when the other party is also entitled to claim the amount as against the first party. 6. The object of Rule 29 of Order XXI is ultimately to adjust the outstanding amount between the parties so that one party who has obtained a decree against the other party is not doubly benefited by seeking to execute the said decree when the other party is also entitled to claim the amount as against the first party. 6. In the instant case, prima facie, it is noted that the petitioner herein has paid certain sums of money to the Indian Overseas Bank as a guarantor in respect of the loan obtained by the respondent. It is in that context that O.S. No. 6270/2003 has been flied for recovery of the said amount. It is also not in dispute that the respondent herein has obtained a decree as against the petitioner in O.S. No. 6867/1996. Though the said suit is a suit for specific performance and in the alternative for damages, the relief of specific performance has been rejected by the trial Court and ultimately, only a monetary benefit has been granted to the respondent herein by a judgment and decree dated 25.01.2003. It is the said decree, which is affirmed by the Apex Court, is sought to be executed in Execution Case No. 485/2011. Having regard to the nature of the proceedings that have taken place between the parties and the relief claimed by the petitioner herein in O.S. No. 6270/2003 as against the respondent and the nature of the decree, which the respondent has obtained as against the petitioner in O.S. No. 6867/1996, I am of the view that Order XXI, Rule 29 of the Code of Civil Procedure squarely applies to the present case. However, proviso to the sub-rule has also to be taken into consideration. The proviso categorically states that, if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons. It implies that the stay of decree sought to be executed by the defendant in the suit can be granted, provided, the plaintiff is put to certain term as to security. In that view of the matter, I am of the view that the trial Court was not right in dismissing the application flied by the petitioner herein. Therefore, the said order is quashed. The application filed by the petitioner is allowed subject to the following terms. In that view of the matter, I am of the view that the trial Court was not right in dismissing the application flied by the petitioner herein. Therefore, the said order is quashed. The application filed by the petitioner is allowed subject to the following terms. The petitioner herein is directed to give security of immovable property to the satisfaction of the trial Court. It is also directed that since the decree obtained by the respondent herein on 25.01.2003 is now stayed in view of the Order XXI, Rule 29 of the Code of Civil Procedure, it is just and necessary that O.S. No. 6270/2003 filed by the petitioner herein be disposed of at an early date. Hence, the trial Court is directed to dispose of the said suit on or before 30.04.2012. It is made clear that the security to be granted by the petitioner herein shall remain till the disposal of the said suit. In the result, this writ petition is allowed. No costs.