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2011 DIGILAW 928 (KAR)

U. Sadananda Udupa v. T. Kusuma Shedthi

2011-09-19

JAWAD RAHIM

body2011
Judgment :- 1. Revision u/s.115 of CPC is directed against the order on I.A.No.1 dated 08.08.2011 in Ex.Case No.14/2011 to stay further proceeding in execution of the decree dated 14.03.2006 and modified award dated 21.02.2009 in O.S.No.96/2003. 2. Petition is listed for admission after notice to the contesting respondent who has entered appearance and is represented by learned counsel Sri.A.Anand Shetty. 3. Heard Sri.S.P.Shankar, Senior designated counsel for the petitioner and learned counsel Sri.A.Anand Shetty for the respondent. 4. From what learned counsel have adverted to and on perusal of the records, it is manifest the respondent Kusuma Shedthi filed execution to execute the decree dated 14.03.2006 in O.S.No.96/2003 as modified subsequently by order dated 21.02.2009 in Lok Adalath by consent of parties. The petitioner was the Judgment Debtor who on receipt of the cause notice filed I.A.No.I invoking Rule 29 of Order XXI of the CPC seeking stay of all further proceedings pending disposal of suit in O.S.No.11/2011 purported to have been filed by him seeking declaration to declare that he is entitled to continue in possession of the schedule premises in terms of the fresh lease between the parties dated 15.12.2010 and for consequential reliefs. It was undoubtedly opposed by the respondent questioning maintainability of the application as also the suit and further proceedings. 5. On contest, the learned trial Judge by the impugned order has dismissed the application against which this revision is filed. 6. The contextual facts which also need reference are: a) In O.S.No.96/2003, the respondent sought eviction of the petitioner on the basis of termination of tenancy and it appears parties contested the proceedings, but it culminated in passing of the decree dated 1`4.03.2006 directing the petitioner to vacate the premises. It was assailed by him in R.A.No.18/2006 which was pending. b) During pendency of the appeal, it appears that a proposal was mooted by the Court itself and referred the parties to the Lok Adalath for settlement which it appears both parties meekly accepted and appeared before the Lok Adalath sitting. In the Lok Adalath sitting, they claimed that the order of eviction was maintained and affirmed, but subject to certain modifications. In the Lok Adalath sitting, they claimed that the order of eviction was maintained and affirmed, but subject to certain modifications. c) As per the modified judgment and award, the defendant was fastened with the liability of paying enhanced rent for the period specified in the award itself i.e., Rs.6,000/-p.m. from 01.03.2009 till 29.02.2010 and at the rate of Rs.7,000/-from 01.03.2010 to 31.03.2011 on which date, he had to vacate the premises. A direction was also issued to the landlady for refund of the amount of Rs.3,25,000/-deposited with her as earnest money. d) In terms of the compromise award, respondent issued two cheques for Rs.1,50,000/-and Rs.87,000/- which bounced on presentation and balance subject matter of penal action in C.C.No.661/2006 before the JMFC, Kundapur. e) The petitioner contends during this period, respondent having realised the inevitable action against her and consequence that may result there from, entered into fresh transaction of lease by indenture of lease dated 15.12.2010 agreeing for fresh lease to allow the petitioner/Judgment Debtor to continue in occupation for eleven months from 01.01.2011 subject to other terms and conditions and covenants. f) The petitioner armed with the said lease deed presumed immunity against the order of eviction in terms of the modified award dated 21.02.2009. However, during this period, the respondent/landlord filed execution No.14/2011 to execute the modified decree 21.02.2009 in O.S.No.96/2003. On receipt of the cause notice, the petitioner has resisted in filing the application. f) The petitioner armed with the said lease deed presumed immunity against the order of eviction in terms of the modified award dated 21.02.2009. However, during this period, the respondent/landlord filed execution No.14/2011 to execute the modified decree 21.02.2009 in O.S.No.96/2003. On receipt of the cause notice, the petitioner has resisted in filing the application. Besides he also filed O.S.No.11/2011 seeking following relief: i) Declaring that he is entitled to continue his occupation in the schedule premises as lessee as per the lease agreement dated 15.12.2010 entered into with the DHR in substitution of the judgment and decree dated14.03.2006 passed by the Civil Judge (Sr.Dn.), Kundapura in O.S.No.96/2003 and the Award dated 21.02.2009 passed by the Lok Adalath, District Legal Services Authority, Udupi in R.A.No.18/2006 is unenforceable in law; ii) Consequently restrain the DHR, her men, agents or anybody claiming through or under her from dispossessing or interfering with the peaceful possession and enjoyment of the schedule property by him, on the basis of the judgment and decree dated 14.03.2006 passed by the Civil Judge (Sr.Dvn.), Kundapura in O.S.No.96/2003 ad the Award dated 21.02.2009 passed by the Lok Adalath, District Legal Services Authority, Udupi in R.A.No.18/2006; iii) Restrain the DHR, her men, agents or anybody claiming through or under her from dispossessing or interfering with the peaceful possession and enjoyment of the schedule property by him without following due process of law. 7. Application filed by him under Order XXI Rule 29, C.P.C. is rejected by the impugned order and it appears an application seeking ad interim order of injunction in O.S.11/11 was disposed of after contest declining to continue the order of injunction. 8. In this fact situation, the Judgment Debtor has approached this Court against the impugned order. It is urged that the fresh transaction entered between the parties 15.12.2010 confers fresh tenancy right rendering modified decree dated 08.08.2011 in executable. 9. Per contra, the respondent/landlord would oppose all these contentions contending the alleged lease deed dated 15.10.2010 is concocted, forged and manipulated and is not executed by her; it has been designed to create a fresh right which would reveal the fraudulent act of the petitioner. 10. The second ground is, the trial court while considering the relief sought under Order XXXIX Rules 1 and 2, C.P.C., opined that the suit itself is not maintainable. 10. The second ground is, the trial court while considering the relief sought under Order XXXIX Rules 1 and 2, C.P.C., opined that the suit itself is not maintainable. Even presuming there was a fresh lease deed entered into on 15.12.2010, it will not impact the original decree modified subsequently. In other words, no cognizance can be taken of the fresh lease between the parties as it is not certified under Order XXI Rules 1 and 3, C.P.C. 11. In reply to such contentions, learned designated senior counsel, Sri S.P.Shankar would contend the question as to whether the document is fraudulent, concocted or genuine is the subject mater of enquiry and decision in O.S.11/11 and unless there is proper adjudication by the competent court, assailing it will be prejudging the issue. 12. Keeping in mind what is urged by both sides, it must be noticed that Rule 29 of Order XXI, C.P.C. is undoubtedly a provision which enables a party to apply to the executing court to stay its hand if there be a suit pending between the parties. The phraseology of Rule 29 gives no scope for doubt. The language is: ‘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 art 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.’13. Therefore, it implies that the court has to record reasons for staying the decree only when the decree is a money decree in the opinion of the court and directing furnishing of surety is not necessary. 14. The first part of Rule 29 does not mandate a reasoned order to be passed. In other words, it spells out if two circumstances referred to in Rule 29 is shown to exist, then the court has no option but to stay its hand. 14. The first part of Rule 29 does not mandate a reasoned order to be passed. In other words, it spells out if two circumstances referred to in Rule 29 is shown to exist, then the court has no option but to stay its hand. On facts it is seen petitioners who have suffered a decree in O.S.96/03 have sought declaration that a fresh transaction of lease between the petitioner and the respondent renders the decree of eviction in O.S.96/03 modified in R.A.18/03 by award of Lok Adalat dated 21.2.2009, unenforceable in law and Exn.P.14/11 to enforce it is not maintainable. The lis, therefore, is between the parties to the suit relating to excitability of the decree in execution. This answers Rule 29 of Order XXI, C.P.C. 15. Therefore, it needs affirmatively to be held when an application is moved under Rule 29 of Order XXI, C.P.C., the executing court has to examine only whether the suit pending in any other court is against the holder of such decree or of a decree which is being executed by such court on the part of the person against whom the decree was passed (applicant in Rule 29). It leaves no scope for doubt that the only consideration for invoking Rule 29 of Order Xxi, C.P.C. is, pendency of suit in any other court against the holder of decree filed by the person against whom the decree is sought to be executed. The executing court thus had to stay its hand on such terms as to security or otherwise as it thinks fit if it is a money decree. If it is not a money decree, then the procedure contemplated under Rule 29 of Order XXI, C.P.C is to stay execution till adjudication of the lis between the parties in the suit, and no considered order relating to merit of the claim in the suit is warranted. 16. Proviso to Rule 29 envisages ‘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.’ It therefore implies that the executing court before which such application is made by the judgment debtor, has to record reasons for staying the decree only if the decree is a money decree and in the opinion of the executing court, imposing the condition of furnishing security, has to be dispensed with. The first part of Rule 29 does not mandate a reasoned order to be passed to stay execution proceedings. A reasoned order has to be passed only if the decree is a money decree and the court in its opinion dispenses with furnishing of security. In other words, to apply Rule 29 of Order XXI, C.P.C., two circumstances should be shown to exist: i) when it is not a money decree, the court has to merely ascertain pendency of the suit against the holder of decree filed by the judgment debtor; there is no other option other than staying the proceedings. Ii) if it is money decree, then was executing court will stay proceedings subject to conditions like furnishing security, etc. in case otherwise pass considered order. 17. There should be no doubt that the executing court is not required to consider the merit of the dispute raised in the suit. The executing court is not conferred with jurisdiction to examine the merit of the claim in the suit against the holder of the decree or the decree under execution. If the suit is pending in any other court for adjudication between the parties, the only permissible order is to stay execution proceedings. 18. A perusal of the impugned order shows the learned judge of the executing court has transgressed the limits prescribed under Rule 29 of Order XXI, C.P.C. and has examined the contentions of the judgment debtor regarding executability of the decree. It has referred to the merits of the claim of the judgment debtor in O.S.11/11, thereby virtually pre-judging his case. The impugned order shows learned judge of the executing court has virtually sat in judgment to decide the merit of the applicant-judgment debtor’s contentions in the suit against the decree under execution. On this basis, learned judge has opined his contentions fall within the scope of Section 47, C.P.C. and unless he files such application, his application under Rule 29 for stay is not maintainable. This approach is certainly erroneous. 19. It is further noticed learned judge has further opined if at all judgment debtor has any right flowing from the decree or subsequent events, a detailed enquiry has to be held under Section 47, C.P.C. and on that basis, it is held the application under Rule 29 or order XXI, C.P.C. is not maintainable. This approach is certainly erroneous. 19. It is further noticed learned judge has further opined if at all judgment debtor has any right flowing from the decree or subsequent events, a detailed enquiry has to be held under Section 47, C.P.C. and on that basis, it is held the application under Rule 29 or order XXI, C.P.C. is not maintainable. Respondent decree holder is using the said observations to non-suit the applicant-judgment debtor for seeking relief of declaration in the suit. 20. Learned counsel for the respondent-decree holder submits the dispute raised by the judgment debtor falls within the ambit of Section 47, C.P.C. as noticed by the executing court and hence, the suit was not maintainable, and therefore, his request to stay execution proceedings under Rule 29 of Order XXI, C.P.C. was rightly declined by the trial court. 21. Besides, he seeks support to such contentions relying on the observations made by the court while disposing of I.A.I filed under Order XXXIX Rules 1 and 2 in O.S.11/11 wherein the learned judge dealing with the original suit has observed on examining the fact situation, that the suit is not maintainable. The opinion so expressed in the interlocutory order is used as strong material to sustain the impugned order, which contention must also fall. This is because the observation made in the order passed on I.A.I may not terminate the original proceedings unless the suit is either dismissed on merit or the plaint is rejected as permissible under Order VII Rule 11, C.P.C. 22. It must be noticed the issue raised is, the decree put in execution is rendered inexecutable in view of further lease (fresh agreement of lease) between the parties on 15.12.2010. Though there is denial of this assertion by the respondent-landlady, yet it could be noticed from the modified award dated 21.2.2009, it is conditional. While the respondent-decree holder is held entitled to secure possession, there is also an obligation cast under the decree for payment of certain amount. The question would be, whether the respondent-decree holder has complied with the conditions in the modified decree to be entitled to enforce it. No doubt executability of the decree has to be gone into in execution proceedings, but the question is, whether the executing court could have rejected the application filed under Rule 29 of Order XXI, C.P.C. which is invoked referring to pendency of the suit. No doubt executability of the decree has to be gone into in execution proceedings, but the question is, whether the executing court could have rejected the application filed under Rule 29 of Order XXI, C.P.C. which is invoked referring to pendency of the suit. The answer has to be in the negative. The right of judgment debtor under Rule 29 is independent of other grounds he may have against execution of the decree. 23. If we allow the situation so created by the order passed on I.A.I in O.S.11/11, then the observations made by the executing court undoubtedly non-suits the applicant-judgment debtor from prosecuting O.S.11/11 and also exposes him to the risk of being evicted without proper adjudication of the disputed contentions. The interlocutory order passed on I.A.I in O.S.11/11 is the subject matter of appeal. Therefore, the best course open to the executing court was to await the decision in the original suit pending which the decree in execution had to be stayed during the pendency of the suit. 24. Taking into consideration all attending circumstances, I am satisfied that the learned judge of the executing court could not have borrowed the observations made by it in the order passed on I.A.I in O.S.11/11 to hold that the suit filed by the applicant-judgment debtor was not maintainable. 25. In the circumstances, the impugned order is not sustainable, and the best course would be to direct the learned trial judge dealing with O.S.11/11 to permit the respondent-decree holder to question maintainability of the suit, i.e. either to seek rejection of the plaint on the basis there was no cause of action or that the suit claim was barred by time as permissible under Rule 11 of Order VII, C.P.C. or to decide maintainability of the suit on the basis of averments made in the plaint and written statement. Meanwhile, the executing court which appears, in the instant case, to be the same court, shall stay its hand from proceeding with execution. 26. Respondent-decree holder is permitted to use all that is available in the legal arsenal to question maintainability of the suit and similarly, the applicant-judgment debtor is permitted to use all defences to shield such lethal legal grounds. Upon such issues being canvassed, the court dealing with O.S.11/11 shall pass appropriate orders within thirty days therefrom. 26. Respondent-decree holder is permitted to use all that is available in the legal arsenal to question maintainability of the suit and similarly, the applicant-judgment debtor is permitted to use all defences to shield such lethal legal grounds. Upon such issues being canvassed, the court dealing with O.S.11/11 shall pass appropriate orders within thirty days therefrom. Till such order is passed, execution proceedings in E.P.14/11 shall stand stayed and subject to the order that may be passed in O.S.11/11, the application filed under Order XXI Rule 29, C.P.C. shall be considered. 27. In case the order in O.S.11/11 regarding maintainability of the suit is in favour of the judgment debtor, then the application filed under Order XXI Rule 29, C.P.C. shall stand allowed, staying execution proceedings pending disposal of the suit. In case the order in O.S.11/11 is against maintainability of the suit, then the executing court shall give opportunity to the judgment debtor to question executability of the decree as permissible under Section 47, C.P.C. 28. Parties have brought to my notice that the litigation is pending since 8 years and hence, the trial court is directed to pass orders regarding maintainability of the suit within 30 days from the date decree holder seeks relief. In view of this order, I.A.2/11 filed under Section 151, C.P.C. praying to dismiss the petition does not survive for consideration and it is accordingly dismissed.