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2014 DIGILAW 1932 (RAJ)

Dilip Kumar v. Vaidha Dayalu Das Chela Khata Ram

2014-12-01

ARUN BHANSALI

body2014
JUDGMENT 1. - This writ petition is filed against the order dated 05.11.2014 passed by the trial court, whereby, the application filed by the petitioner under Order 21, Rule 29 CPC has been rejected. 2. The petitioner and respondent are related to each other and the suit shop was let out by the respondent to the petitioner, the suit was filed by the respondent being Civil Original Suit No.29/2009 for eviction, arrears of rent and damages, which came to be decreed ex parte by the court of Civil Judge (Senior Division), Bikaner on 03.10.2012. 3. Whereafter, the execution proceedings were initiated by the decree holder-respondent, wherein, notices under Order 21, Rule 22 CPC were served on the petitioner, however, he did not put in appearance. 4. Whereafter, the petitioner filed Civil Original Suit in the year 2014 seeking cancellation of decree dated 03.10.2012 passed by Civil Judge (Senior Division), Bikaner on the ground of the decree having been obtained by fraud. 5. In the said suit, the petitioner filed an application under Order 39, Rule 1 & 2 CPC seeking stay of the execution proceedings, which application was rejected on 26.08.2014, appeal against the order dated 26.08.2014 also came to be rejected by Additional District Judge No.4, Bikaner on 16.09.2014. 6. Thereafter, the present application under Order 21, Rule 29 CPC was filed by the petitioner, inter alia, on the ground that as the suit filed by the petitioner seeking cancellation of decree dated 03.10.2012, which was sought to be executed, is pending, the further proceedings in the execution proceedings be stayed till the disposal of the suit. 7. The application was resisted by the respondent-decree holder by way of filing reply indicating the fact of the petitioner being aware of pendency of the suit, pendency of the execution proceedings and malafidely filing the suit for cancellation after the orders were passed by the executing court for possession of the suit shop by breaking of the locks. 8. The executing court after hearing the parties, came to the conclusion that sufficient cause was not made out by the petitioner seeking stay of execution proceedings and that the petitioner did not approach the court with clean hands and, consequently, dismissed the application filed by the petitioner under Order 21, Rule 29 CPC. 9. 8. The executing court after hearing the parties, came to the conclusion that sufficient cause was not made out by the petitioner seeking stay of execution proceedings and that the petitioner did not approach the court with clean hands and, consequently, dismissed the application filed by the petitioner under Order 21, Rule 29 CPC. 9. Learned counsel for the petitioner vehemently submitted that the trial court committed grave error in rejecting the application filed by the petitioner, the two requirements as envisage by provisions of Order 21, Rule 29 CPC i.e. pendency of suit against the decree-holder and the suit having been filed by the judgment-debtor having been fulfilled, the executing court was bound to stay the execution of the decree until the pending suit had been decided. However, the executing court based on the facts, which have no relevance for the purpose of determination of application under Order 21, Rule 29 CPC, has rejected the application. 10. It was further submitted that on rejection of the application, suit filed by the petitioner seeking cancellation of the decree would be rendered in-fructuous, if in the meanwhile the decree is executed and, therefore, the order impugned deserves to be quashed and set aside. 11. Reliance was place on judgment of this Court in Hansraj v. Satnarain & Ors.: AIR 1957 Raj. 219 and the judgment of Patna High Court in Smt. Ramkumari Debi v. Tarkeshwar Nath Pandey & Ors.; AIR 1975 Pat. 110 . 12. Learned counsel for the respondent-caveator duly supported the order passed by the trial court. 13. I have considered the rival submissions. 14. Provision of Order 21, Rule 29 reads as under:- "29. Stay of execution pending suit between decree-holder and judgment-debtor. - 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.]" 15. A bare look at the said provision reveals that if a suit by a judgment-debtor is pending in a court against the decree-holder of that court, the execution of the decree may, under the above rule, can be stayed until the disposal of the suit. However, the provision further reveals that the said rule is not mandatory and the court is not obliged to grant stay merely because the requirements of the rule regarding - (a) suit by a judgment debtor, and (b) against the holder of the decree of that court are fulfilled, inasmuch as, the rule itself provides that the Court may and the word may in the rule cannot be read as shall. 16. Once the power under rule is held to be discretionary, obviously the discretion cannot be exercised arbitrarily. However no hard and fast rule can be laid down as to in what cases stay should be granted or refused. But in any case, a rigorous test has to be applied, inasmuch as, the execution of a decree obtained from the civil court is sought to be stayed and the decree holder is being deprived of the fruits of that decree and, therefore, such a stay should not be granted except for good reasons. 17. While considering the said aspect, the executing court is bound to look into the various aspects including the manner in which, the decree sought to be executed has been obtained, prima facie substance in the suit filed by the judgment-debtor, and other attending circumstances including the conduct of the judgment-debtor. 18. In the present case, the executing court while dealing with the application under Order 21, Rule 29 CPC found that the judgment-debtor has clearly admitted service of summons of the suit on him, however, claimed that he was misled by the decree-holder, whereafter, he remained ex parte, resulting in passing of ex parte decree against him. Even after the notices under XXI, Rule 22 CPC were served on the judgment-debtor, he did not take any steps either to get the ex parte decree set aside or challenge the decree before appropriate forum and only when the order was passed by the executing court permitting possession of the suit property by breaking open the locks, that the suit was filed seeking cancellation of the decree on ground of alleged fraud. 19. 19. The overall conduct of the judgment debtor in dealing with the suit, and the execution proceedings in the opinion of this Court does not inspire confidence and besides the above facts, the application seeking temporary injunction filed by the petitioner in the suit seeking cancellation of decree had also been rejected and appeal thereof had also been rejected. 20. In the over all circumstances of the case as noticed by the trial court, it cannot be said that the present was a case where the discretion should have been exercised by the executing court in favour of the judgment debtor-petitioner and therefore, the impugned order cannot be faulted.The judgment in the case of Hansraj (supra) laid down as under:- "All that is required for the application of Order 21, Rule 29 is (1) that the suit should be pending in any court against the holder of a decree of that very court, (2) and that the suit should have been filed by the person against whom the earlier decree was passed. In such a case, it is open to the court to stay execution of the decree until the pending suit has been decided on such terms as to security or otherwise as it thinks fit." (Emphasis Supplied)The use of the words, 'it is open to the court to stay execution of the decree' clearly indicates the discretion with the executing court and not that in every case the execution has to be stayed. Similarly, the case of Ramkumari Debi (supra) deals with the forum, where the application under Order 21, Rule 29 CPC is to be filed and it does not deal with the parameters within which the stay should be granted by the executing court.In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. The stay petition is also dismissed.Petition dismissed. *******