Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 770 (JHR)

Balram Oraon v. Nanka Oraon

2020-08-11

RAJESH SHANKAR

body2020
JUDGMENT : The present writ petition is taken up today through Video conferencing. The present writ petition has been filed challenging the order dated 04.01.2019 passed by the Civil Judge (Sr. Division)-I, Gumla in Execution Case No. 01 of 2014, whereby a petition filed on behalf of the decree holders/respondents for vacating the order dated 17.06.2017 granting stay has been allowed by the said executing court with direction to the Nazir to execute the writ as issued earlier. 2. The factual background of the case as stated in the writ petition is that the father-in-law of the respondent no. 1/father of the respondent no. 2 namely, Budhua Oraon filed a suit for partition being Partition Suit No. 15 of 1989 against his younger brother Charwa Oraon (father of the petitioner) and the said suit was decreed in favour of the deceased plaintiff vide judgment dated 27.07.1991 and the preliminary decree was prepared on 03.08.1991. After the death of the original plaintiff, the respondent nos. 1 and 2 were substituted as heirs of the decree- holder. The son of the deceased defendant namely, Balram Oraon (the petitioner herein) filed Title Suit No. 14 of 2004 before the court below for declaration of his right, title and interest upon the suit property seeking a further direction stating therein that the respondent nos. 1 and 2 had no concern with late Budhua Oraon. It was also prayed therein for issuance of temporary injunction against the respondent nos. 1 and 2 to restrain them from seeking appointment of Pleader Commissioner for carving out the share of the plaintiff in Partition Suit No. 15 of 1989 till disposal of the said suit and if the Pleader Commissioner had been appointed, the work of the Pleader Commissioner be also restrained. The suit was, however, dismissed vide judgment dated 30.05.2015 (decree signed on 08.06.2015). Aggrieved thereby, the petitioner preferred Title Appeal No. 11 of 2015 in the court of Principal District Judge, Gumla which is still pending. During the pendency of the Title Suit No. 14 of 2004, the respondent nos. The suit was, however, dismissed vide judgment dated 30.05.2015 (decree signed on 08.06.2015). Aggrieved thereby, the petitioner preferred Title Appeal No. 11 of 2015 in the court of Principal District Judge, Gumla which is still pending. During the pendency of the Title Suit No. 14 of 2004, the respondent nos. 1 and 2 had filed Execution Case No. 1 of 2014 for executing the decree passed in Partition Suit No. 15 of 1989, wherein the petitioner made an application under Order XXI Rule 29 CPC praying inter alia for staying the execution proceeding till the disposal of Title Appeal No. 11 of 2015 stating therein that the land appertaining to execution proceeding and Title Appeal No. 11 of 2015 is same and identical and the said title appeal was sub-judice before the appellate court. The executing court stayed the execution proceeding vide order dated 17.06.2017 and directed the Nazir to stop the execution till further order on the said petition. Thereafter on 03.10.2018, the respondents filed a petition before the executing court for vacating the stay giving reference to the judgment rendered by the Hon’ble Supreme Court in the case of “Asian Resurfacing of Road Agency Pvt. Limited & Anr. Vs. Central Bureau of Investigation” reported in 2018(2) JLJR 320 (SC)., which was allowed by the executing court and the stay granted in the matter was vacated. 3. The learned counsel for the petitioner submits that the learned court below failed to consider that the present case is of exceptional nature as continuation of stay is much more important than getting the decree executed. The learned court below has failed to appreciate that the land appertaining to execution proceeding as well as Title Appeal No. 11 of 2015 is same and identical and the said title appeal is sub-judice before the appellate court and as such, the vacation of the stay order will cause irreparable loss and injury to the petitioner. It is also submitted that the executing court has also not considered that the Title Appeal No. 11 of 2015 is in fact continuance of Title Suit No. 14 of 2004. 4. The learned counsel for the petitioner in support of his submission has put reliance on paragraph no. 2 of the judgment rendered by the Hon’ble Supreme Court in the case of “ Fazalullah Khan Vs. M. Akbar Contractor (D) by Lrs. 4. The learned counsel for the petitioner in support of his submission has put reliance on paragraph no. 2 of the judgment rendered by the Hon’ble Supreme Court in the case of “ Fazalullah Khan Vs. M. Akbar Contractor (D) by Lrs. & Ors.” reported in 2019 SCC OnLine SC 1513. 5. Heard the learned counsel for the petitioner and perused the content of the writ petition. The learned court below vide impugned order dated 04.01.2019 has vacated the order of stay which was earlier granted under Order XXI Rule 29 CPC by observing that the properties of Partition Suit No. 15 of 1989 and Original Title Suit No. 14 of 2004 are same. The judgment-debtor (the petitioner herein) lost Title Suit No. 14 of 2004 and thereafter preferred Title Appeal No. 11 of 2015. Since the decree-holder(s) were not appearing in the title appeal, the order of stay of execution proceeding was passed to compel the decree-holder(s) to appear before the appellate court and thus, the ultimate object so as to invoke Order XXI Rule 29 CPC was achieved. Hence, there is no requirement of continuance of order of stay in execution of the writ any further. 6. To appreciate the contention of the learned counsel for the petitioner, it would be appropriate to go through the judgment of the Hon’ble Supreme Court rendered in the case of “Shaukat Hussain alias Ali Akram & Ors. Vs. Smt. Bhuneshwari Devi (dead) by LRS. & Ors.” reported in (1972) 2 SCC 731 , wherein it has been held as under: 7. It is true that in appropriate cases a court may grant an injunction against a party not to prosecute a proceeding in some other court. But ordinarily courts, unless they exercise appellate or revisional jurisdiction, do not have the power to stop proceedings in other courts by an order directed to such courts. For this specific provisions of law are necessary. Rule 29 clearly shows that the power of the court to stay execution before it flows directly from the fact that the execution is at the instance of the decree-holder whose decree had been passed by that court only. If the decree in execution was not passed by it, it had no jurisdiction to stay the execution. In fact this is emphasised by Rule 26, already referred to. If the decree in execution was not passed by it, it had no jurisdiction to stay the execution. In fact this is emphasised by Rule 26, already referred to. In the case before us the decree sought to be executed was not the decree of Munsif 1st Court, Gaya but the decree of the Subordinate Judge, Gaya passed by him in exercise of his Small Cause Court jurisdiction. It is, therefore, obvious that the Order staying execution passed by the Munsif, Gaya would be incompetent and without jurisdiction. 8. Mr Chagla sought to rely on a decision of the Bombay High Court in Narsidas Nathubhai Vohra v. Manharsing Agarsing Thakor [33 Bom LR 370] and specially the observations made at p. 373. The observations are: “If the execution of a decree is transferred for execution to another court and a suit is brought in the Court in which the execution proceedings were first started against the holder of a decree of that Court, the Court in which the suit is brought would have jurisdiction to pass an Order under Order 21 Rule 29, though the execution proceedings may be actually pending before another Judge to whom the execution proceedings may have been transferred by the Court”. In order to understand these observations, we must know the fact of that case. One Narsidas obtained a money decree against Manharsing in the Court of the First Class Subordinate Judge, Ahmedabad. The principal Subordinate Judge of that court was Mr Jhaveri and the joint Subordinate Judge was Mr Yajnik. Narsidas filed an application for executing the decree in that court. The judgment-debtor Manharsing filed a suit in the same court for setting aside the decree against him. Thus simultaneously there were two proceedings in the same court namely the Court of the First Class Subordinate Judge, Ahmedabad between the two parties — one being a suit filed by the judgment-debtor against the decree-holder and the other being an execution proceeding by the decree-holder against the judgment-debtor in respect of a decree passed by the same court. That brought in directly the provisions of Order 21 Rule 29, and there was no dispute that the execution proceeding could be stayed. The question, however, was whether, Mr Yajnik before whom the suit was pending could stay the execution of the decree which was pending before Mr Jhaveri. That brought in directly the provisions of Order 21 Rule 29, and there was no dispute that the execution proceeding could be stayed. The question, however, was whether, Mr Yajnik before whom the suit was pending could stay the execution of the decree which was pending before Mr Jhaveri. It was contended that Mr Yajnik had no jurisdiction to pass an Order under Order 21 Rule 29, as the execution proceedings were not pending before him but were pending before the First Class Subordinate Judge, Mr Jhaveri. This contention was overruled. It was pointed out that though there were two Judges attached to the court, the court was one and Order 21, Rule 29, did not refer to any individual Judge but to the court. Therefore, either of that court in charge of the suit was capable of staying the execution in that court regardless of the Judge before whom the execution was pending. It is in that context that the above observations were made. The observations contemplate case where after the institution of the execution proceeding in the First Class Subordinate Judges' Court the same is transferred in due course of distribution of business to another Judge attached to that Court. Some little confusion is created by the words “another court” when they first appear in the above observations. The words “another court” really stand for another Judge of that court as is clear from the last clause of that very sentence. Having made the above observations, the court further observed “It is not, therefore, necessary in our opinion that the execution proceedings must be pending before the same Judge before whom the suit is pending. It is sufficient if the suit is pending in any court against the holder of a decree of such court”. The decision is no authority for the contention put forward by Mr Chagla. 7. On perusal of the provisions of Order XXI Rule 29 CPC, it would be evident that the said provision deals with the stay of execution during pendency of suit between the decree-holder and the judgmentdebtor. The decision is no authority for the contention put forward by Mr Chagla. 7. On perusal of the provisions of Order XXI Rule 29 CPC, it would be evident that the said provision deals with the stay of execution during pendency of suit between the decree-holder and the judgmentdebtor. It provides that where a suit is pending in a 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 the security or otherwise, as it thinks fit, stay the execution of decree until pending suit is decided. Thus, for applicability of the provisions of Order XXI Rule 29 CPC, two conditions are to be met: (i) a proceeding in execution of decree of that court has started at the instance of the decree-holder against the judgment-debtor and (ii) a suit at the instance of the same judgment-debtor is pending against the holder of the decree of that court. As per the ratio laid down by the Hon’ble Apex Court in the case of “ Shaukat Hussain” (supra), a transferee court has no power under Order XXI Rule 29 CPC to stay the execution of decree pending in its court because the decree has not been passed by that court. In the said case, subsequent sale in spite of the stay order has been held valid. Unless this prime condition is fulfilled, the execution case filed by the decreeholder cannot be stayed even if the subject-matter in both the cases happens to be one and the same. 8. Now, reverting back to the case in hand, it is evident that Execution Case No. 1 of 2014 has been filed by the decree-holder for execution of the decree passed in Partition Suit No. 15 of 1989. Title Suit No. 14 of 2004 filed by the son of the judgment-debtor (the petitioner herein) has also been dismissed. During the pendency of Title Appeal No. 11 of 2015, the petitioner filed an application under Order XXI Rule 29 CPC read with Section 151 CPC for staying the execution proceeding claiming that the land appertaining to execution proceeding and title appeal is same and the said appeal is still pending before the appellate court. During the pendency of Title Appeal No. 11 of 2015, the petitioner filed an application under Order XXI Rule 29 CPC read with Section 151 CPC for staying the execution proceeding claiming that the land appertaining to execution proceeding and title appeal is same and the said appeal is still pending before the appellate court. The executing court allowed the said application filed by the petitioner and the execution proceeding was stayed till further order and disposal of the said petition. In view of the judgment of the Hon’ble Supreme Court rendered in the case of “ Shaukat Hussain” (supra) as well as the provisions of Order XXI Rule 29 CPC, the order dated 17.06.2017 passed by the executing court was beyond the scope of the said provision since both the proceedings were not pending before the said court. The execution case was pending before the Civil Judge (Sr. Division)-I, Gumla whereas the appeal was pending in the court of the Principal District Judge, Gumla. It is evident from the impugned order that the stay of execution proceeding was granted merely to ensure the appearance of the decree-holder before the appellate court, however, the same cannot be a ground for stay of execution proceeding. Since the order of stay granted vide order dated 17.06.2017 has now been vacated, there is no need to go in much detail on the propriety of the said order. So far as the impugned order dated 04.01.2019 vacating the earlier order of stay is concerned, I find no infirmity in the same. The court below having taken into consideration all the facts and circumstances of the case has found that the conditions for granting stay under Order XXI Rule 29 CPC is not applicable in the facts of the present case and has finally vacated the stay earlier granted vide order dated 17.06.2017. Order XXI Rule 26 CPC also provides for grant of stay by the executing court for a reasonable time upon sufficient cause being shown 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 the court of first instance or the appellate court. Thus, any stay granted under Order XXI Rule 26 CPC is not permanent, rather the same is for a reasonable period. 9. I have perused the judgment cited by the learned counsel for the petitioner in the case of “Fazalullah Khan” (supra). In the said case, the Hon’ble Supreme Court has observed that the stay order granted by the Hon’ble Supreme Court shall not be automatically vacated even on expiry of six months in view of the judgment rendered by the Hon’ble Supreme Court in the case of “Asian Resurfacing of Road Agency Pvt. Limited” (supra). The observation made in the said case will not help the case of the petitioner since the facts and circumstance of the present case is entirely different from the said case cited by the learned counsel for the petitioner. 10. In view of the aforesaid factual as well as legal position, I find no infirmity in the impugned order dated 04.01.2019 passed by the Civil Judge (Sr. Division)-I, Gumla. 11. The writ petition is accordingly dismissed.