Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 248 (ORI)

Harihar Das v. Lalita Sahoo

2019-03-27

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 8.3.2019 passed by the learned Civil Judge (Jr.Division), 1st Court, Cuttack in Execution Case No.2 of 2018 arising out of C.S.No.7262 of 2014. By the said order, learned executing court rejected the application of the J.Dr.-petitioner to stay the further proceeding of the execution case till disposal of C.S.No.1005 of 2017. 2. This case has a chequered history. The plaintiff- petitioner instituted C.S.No.7262 of 2014 before the learned Civil Judge (Jr.Division), 1st Court, Cuttack for permanent injunction restraining the defendants-opposite parties from evicting him from the suit house without due process of law. During pendency of the suit, a compromise was arrived at between the parties. Accordingly, they had filed an application on 6.1.2015 under Order 23 Rule 3 CPC for compromise. The suit was decreed in terms of the compromise on 7.1.2015. Thereafter the plaintiff instituted Civil Suit No.1005 of 2017 in the same Court seeking the self-same relief. The D.Hrs. levid Execution Case No.2 of 2018. The plaintiff filed an application under Rules 26 & 29 of Order 21 CPC to stay the further proceeding of the execution case till disposal of Civil Suit No.1005 of 2017. The D.Hrs. filed objection. Learned executing court rejected the petition holding inter alia that the J.Dr. has not assailed the compromise decree passed in C.S.No.7262 of 2014. The decree has attained finality. The D.Hrs. cannot be deprived of the fruits of litigation. 3. Mr.Ranjit Kumar Lenka, learned Advocate for the petitioner submits that the plaintiff is a tenant. He cannot be evicted without due process of law. Earlier suit was decreed in terms of the compromise. There is a clause in the compromise petition that "the present continuation of tenancy shall be completed on 31st December, 2017". Thereafter the plaintiff instituted C.S.No.1005 of 2017. Referring to Rules 26 & 29 of Order 21 CPC, he submits that further proceeding of the execution case shall remain stayed till disposal of C.S.No.1005 of 2017. He places reliance on a decision of the apex Court in the case of Bibekananda Bhowal (dead) by L.Rs. v. Satindra Mohan Deb (dead) by L.Rs, AIR 1996 SC 1985 . 4. Before adverting into the contentions raised by the learned counsel for the petitioner, it will be necessary to set out Rules 26 & 29 of Order 21 CPC. "26. v. Satindra Mohan Deb (dead) by L.Rs, AIR 1996 SC 1985 . 4. Before adverting into the contentions raised by the learned counsel for the petitioner, it will be necessary to set out Rules 26 & 29 of Order 21 CPC. "26. When Court may stay execution.-(1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the Judgment- debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto. (2) & (3) xxx xxx" xxx xxx xxx "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." xxx xxx xxx 5. The words "upon sufficient cause being shown" appearing in Order 26 is material. Merely because another suit has been filed, the same is not per se a ground to stay the execution case. The D.Hr. cannot be deprived of the fruits of litigation. 6. In Judhistir Jena vs. Surendra Mohanty and another, AIR 1969 Ori. 233 , this Court held :- "xxx xxx xxx The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the decree might succeed. Such suits are also of a very precarious nature. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the decree might succeed. Such suits are also of a very precarious nature. The allegations therein ordinarily would be that the previous decree was obtained by fraud or collusion or that the decree was not binding on the present plaintiff as the transaction entered into by the judgment-debtor was tainted with immorality. These are all suits of un-certain and speculative character. Most of these cases are likely to fail the onus being very heavy on the plaintiff to establish fraud and similar charges. That being the position, a person should not be deprived of the fruits of his decree merely because suits of frivolous character are instituted and litigants are out after further series of litigations. The decree must be allowed to be executed and unless an extra-ordinary case is made out, no stay should be granted. Even if stay is granted, it must be on suitable terms so that the earlier decree is not stifled. No hard and fast rule can be laid down in what cases stay would be granted or refused. But as has already been stated, a rigorous test is to be applied and in most of the cases prayer for stay is bound to be refused. xxx xxx xxx" 7. In Narendra Ray v. Kunjabehari Ray and others, Vol- 32(1990) OJD-556 (Civil), this Court held that Order 21 Rule 29 C.P.C. is attracted if a suit by the judgment-debtor is pending in a court against the decree holder of that court and in such a case the execution of the decree may be stayed until disposal of the suit. The power to stay execution is discretionary, but the discretion is to be exercised judicially on consideration of relevant facts and circumstances of the case. 8. Reverting to the facts of this case and keeping in view the enunciation of law laid down in the decisions cited supra, this Court finds that the plaintiff had earlier filed C.S.No.7262 of 2014 for permanent injunction impleading the defendants. A compromise was arrived at between the parties. Clause-6 (i) of the compromise petition provides that the tenancy shall be completed on 31st December, 2017. The suit was decreed in terms of the said compromise on 7.1.2015. A compromise was arrived at between the parties. Clause-6 (i) of the compromise petition provides that the tenancy shall be completed on 31st December, 2017. The suit was decreed in terms of the said compromise on 7.1.2015. The compromise petition formed a part of the decree. The operative part of the order is quoted hereunder: "The suit is decreed preliminarily in terms of compromise and the compromise petition filed on record being signed by both the parties do form part of the decree. The parties shall bear their respective cost of the suit." 9. In view of the same, the plaintiff could have continued in the tenanted premises till 31st December, 2017. Since the plaintiff has not vacated the tenanted premises, the D.Hrs. were constrained to file Execution Case No.2 of 2018. To obstruct the plaintiff from enjoying the fruits of litigation, the plaintiff again instituted C.S.No.1005 of 2017. The suit is a ruse. The same has been instituted to deprive the D.Hrs. of enjoying the fruits of litigation. Order 21, Rules 26 & 29 CPC cannot come to the aid of the J.Dr., unless sufficient cause is shown to stay the further proceeding of the execution case. In the instant case no sufficient cause has been shown. 10. The decision in the case of Bibekananda Bhowal is distinguishable on facts. In the said case, the suit was decreed in terms of the compromise. The terms of compromise decree provides that the defendants would be liable to be evicted after expiry of ten years from the suit property by appropriate action in the Court of law. The apex Court held that the defendants cannot be evicted in execution of compromise decree. Fresh suit for ejectment is permissible. But in the instant case, there is a clause in the compromise that the tenant shall continue till 31st December, 2017. 11. The logical sequitur of the analysis made in the preceding paragraphs is that the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.