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2020 DIGILAW 817 (KER)

Abdul Samad v. Nahakhan

2020-10-01

R.NARAYANA PISHARADI

body2020
JUDGMENT : The petitioner is the plaintiff and the respondent is the defendant in the suit O.S.No.165/2017 on the file of the Munsiff's Court, Kayamkulam. 2. The plaintiff is said to be suffering from bipolar disorder and the suit was instituted by his wife as his next friend. 3. The suit is instituted for granting a decree of declaration of title of the plaintiff over the plaint schedule property and also for granting a decree of prohibitory injunction restraining the defendant from alienating or making any alteration to the nature of that property. 4. The case of the plaintiff in the suit is, that the plaint schedule property belonged to him, that on 19.09.2016 he executed sale deed No.1033/2016 in respect of that property in favour of the defendant, that the aforesaid sale deed was signed by him without knowing its nature as he was suffering from mental illness, that the sale deed is not supported by consideration, that the sale deed is void and that the plaint schedule property is in his possession. 5. The defendant filed an application as I.A.No.1509/2017 in the suit for granting an order of interim mandatory injunction, directing the plaintiff to reconstruct the wall of the shop rooms in the building which was allegedly demolished by the plaintiff and to open the shutters of the shop rooms by removing the padlocks put in by the plaintiff from inside. This application was filed by the defendant alleging that he was in possession of the plaint schedule property after the execution of the sale deed and subsequent to the institution of the suit, the plaintiff demolished a portion of the wall of the shop rooms in the plaint schedule property and that he locked the shop rooms from inside with padlocks. 6. The trial court considered the application for interim mandatory injunction filed by the defendant together with the applications for interim injunction filed by the plaintiff. By a common order dated 19.03.2018, the trial court dismissed the applications filed by the plaintiff but allowed the application for interim mandatory injunction filed by the defendant. 6. The trial court considered the application for interim mandatory injunction filed by the defendant together with the applications for interim injunction filed by the plaintiff. By a common order dated 19.03.2018, the trial court dismissed the applications filed by the plaintiff but allowed the application for interim mandatory injunction filed by the defendant. The trial court directed the plaintiff to reconstruct the western extremity of the wall on the southern side of the shop rooms bearing Nos.KMC II/139 F and KMC II/139 G in the plaint schedule property and to open the three padlocks used for locking the shutters of the said shop rooms from inside. In the event of failure of the plaintiff to comply with the order, the trial court also allowed the defendant to get the order executed through the process of the court. 7. The plaintiff filed appeals before the District Court challenging the aforesaid orders passed by the trial court. By a common judgment dated 07.12.2018, the District Court dismissed those appeals. 8. The defendant filed execution petition as E.P.No.2/2019 in the Munsiff's Court for executing the order of interim mandatory injunction passed against the plaintiff. The plaintiff filed objection to the execution petition contending that the order of interim mandatory injunction passed against him by the court is not executable as a decree and that the execution petition is not maintainable. 9. The plaintiff also filed Ext.P4 application (E.A.No. 25/2020) under Order XXI Rule 29 of the Code of Civil Procedure, 1908 (for short 'the Code') praying that the proceedings in the execution petition may be stayed till the disposal of the suit filed by him. 10. As per Ext.P6 order dated 16.06.2020, learned Munsiff found that the order of interim mandatory injunction passed against the plaintiff is executable and appointed an Advocate as commissioner to execute that order at the costs and expenses of the defendant. As per Ext.P7 order dated 16.06.2020, learned Munsiff also dismissed the application E.A.No.25/2020 filed by the plaintiff. 11. The plaintiff has filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P7 order. 12. Heard learned counsel for the petitioner and also the respondent. 13. Learned counsel for the petitioner raised the following contentions, challenging the legality of Ext.P7 order. 11. The plaintiff has filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P7 order. 12. Heard learned counsel for the petitioner and also the respondent. 13. Learned counsel for the petitioner raised the following contentions, challenging the legality of Ext.P7 order. (1) An order of interim mandatory injunction can be passed only to restore the status quo in respect of the property in dispute at the time of institution of the suit. (2) The order of interim mandatory injunction passed against the plaintiff is not executable as a decree. (3) The rights and liabilities of the parties in relation to the property in dispute would be decided only in the suit and it is mandatory under Order XXI Rule 29 of the Code to stay the execution of the order of interim mandatory injunction till the disposal of the suit. 14. The first contention, as stated above, is with regard to the legality of the order of interim mandatory injunction passed against the plaintiff and not with regard to Ext.P7 order and therefore, it does not merit consideration in this original petition. 15. Moreover, the plaintiff had filed original petition as O.P.No.736/2019 before this Court, challenging the legality of the interim mandatory injunction order passed against him by the trial court and the judgment of the appellate court confirming that order. The aforesaid original petition has been dismissed by this Court. 16. There is also no merit in the second contention raised by the learned counsel for the petitioner. Section 36 of the Code states that the provisions of the Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders. Dealing with the scope of Section 36 of the Code, in Sheela Jerald v. Pushpadasan [ 2018 (4) KHC 402 (SC)], the Supreme Court has held that an order passed validly by a competent court must be capable of execution if it has to have any meaning for the parties in litigation and that an order granting injunction is executable by applying the provisions of the Code relating to execution of decrees. 17. 17. The third contention raised by the learned counsel for the petitioner is that, once the conditions under Order XXI Rule 29 of the Code are satisfied, the court is bound to pass an order staying the execution proceedings. Learned counsel for the respondent would contend that execution of an interim order cannot be stayed under Order XXI Rule 29 of the Code and that the application filed by the plaintiff in that regard is not maintainable. 18. The provision contained in Rule 29 of Order XXI of the Code reads as follows: “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”. 19. A perusal of the aforesaid provision would reveal that there should be simultaneously two proceedings in one court. One is the proceeding in the execution court filed by the decree holder against the judgment debtor and the other proceeding is a suit filed by the judgment debtor against the decree holder. 20. In Shaukat Hussain v. Bhuneshwari Devi : AIR 1973 SC 528 , the Supreme Court has held as follows: “It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree holder against the judgment debtor and the other a suit at the instance of the judgment debtor against the decree holder. That is a condition under which the court in which the suit is pending may stay the execution before it. .... It is not enough that there is a suit pending by the judgment debtor, it is further necessary that the suit must be against the holder of a decree of such court. The words "such court" are important. "Such court" means in the context of that rule the court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that court. That appears to be the plain meaning of the rule”. 21. The words "such court" are important. "Such court" means in the context of that rule the court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that court. That appears to be the plain meaning of the rule”. 21. What is the object of or the principle behind the provision contained in Order XXI Rule 29 of the Code? In Mahesh Chandra Sadhu v. Jogendra Lal Sarkar : AIR 1928 Cal 222, it has been held as follows: “The two-fold object which, I think, the Legislature had in view when enacting Order XXI, Rule 29, namely, to prevent (1) the judgment-debtor being compelled to satisfy the decree by providing the sum due when it might be proved (after his claim against the decree-holder was finally determined) that on balance he owed the decree-holder less than the decretal sum or, it might be, nothing at all; (2) the multiplicity of execution proceedings”. 22. In Kannammal v. Muthukumaraswami Chetty: AIR 1936 Mad 102, it has been held as follows: “The object of the rule, I take it, is that, should a plaintiff in a pending suit succeed therein, then there can be an adjustment of the decree or claim by that plaintiff against the decree obtained against him in the other suit in the same court without it being necessary for the successful plaintiff in the pending suit to take out execution proceedings. Execution in the other suit is stayed so that the rights of the parties can be adjusted. Furthermore it seems to me to be quite right that, in cases where it is likely that the decreeholder in the other suit may take steps which might deprive the plaintiff in the pending suit of the fruits of any decree which he obtains, an order staying the execution in the other suit should be made. The rule is not an imperative one; and the Court has a discretion either to grant the relief asked for, namely, stay of execution of the decree, or to refuse it”. 23. The rule is not an imperative one; and the Court has a discretion either to grant the relief asked for, namely, stay of execution of the decree, or to refuse it”. 23. In Anop Chand v. Hirachand : AIR 1962 Raj 223 , it has been held as follows: “This rule is based on the principle that a judgment-debtor may not be harassed if he has a substantial claim against the decree-holder which is pending for decision of the Court executing the decree. The Court, which is examining the claim of the judgment-debtor, has before it all the material on which the claim of the judgment-debtor is based, if the Court is of the view that there is some substance in the claim, it may order for the stay of the execution filed by the defendant in that case and that too upon such terms of security or otherwise. It is clear from the wordings of Rule 29 of Order 21 that the power given to the Court is discretionary and in exercise of that power the Court may impose any condition as to security or otherwise which it may think fit. The only right available to the judgment-debtor is to make an application drawing attention of the Court that his suit is pending and praying for stay of the execution filed by his defendant”. 24. In Judhistir Jena v. Surendra Mohanty : AIR 1969 Ori 233 , it was held as follows: "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”. 25. In P.Shanmugham v. K.Manickam : (1980) 2 MLJ 383 , dealing with the scope of Order XXI Rule 29 of the Code, the Madras High Court has held as follows: “Under this rule, therefore, if a suit by a judgment-debtor is pending in a Court against the holder of a decree of that Court, the execution of the decree may be stayed until the disposal of the suit. It is at once obvious that this rule is intended to enable the judgment-debtor and the decree-holder to adjust their claims against each other and also to avoid a multiplicity of execution proceedings. ...... But yet, it must also be remembered that the rule is not an imperative one and the Court as a matter of exercise of its discretion can either grant the stay asked for or refuse the same”. 26. In Yasodamma v. Anjaiah [1986 (2) APLJ (HC) 33: MANU/AP/0344/1985], the purpose behind Order XXI Rule 29 of the Code, has been explained as follows: "The intendment behind Order 21, Rule 29 C.P.C. is the prevention of multiplicity of proceedings and to ensure that the plaintiff can set off or wipe out any amount due by him towards any amount due to him. It is also true that the above provision applies to suits relating to immovable property and that raises an important question. There may be cases where the judgment debtor has acquired a fresh title or right to possession of the same property on account of certain events taking place subsequent to the date of decree, thus acquiring a superior title to retain the property However, if the title to the property or possession remains the same, the judgment-debtor cannot resort to Order 21, Rule 29 CPC”. 27. The object of the provision contained in Order XXI Rule 29 of the Code, as discernible from the decisions referred to above, is to enable the parties to have adjustment of their rights or claims in two suits. The provision would come into play when a decree is passed against a person in one suit and such person has instituted another suit against the decree-holder. If the execution proceedings and the proceedings in the suit are pending in the same court, then the court may stay the execution proceedings till the disposal of the suit so that the parties could adjust their claims against each other and avoid multiplicity of execution proceedings. 28. If Ext.P4 application filed by the plaintiff is considered in the light of the abovementioned principles, it can be found that it is not maintainable under Order XXI Rule 29 of the Code. Here, the execution proceedings relate to the interim order passed by the court in the same suit. 28. If Ext.P4 application filed by the plaintiff is considered in the light of the abovementioned principles, it can be found that it is not maintainable under Order XXI Rule 29 of the Code. Here, the execution proceedings relate to the interim order passed by the court in the same suit. Order XXI Rule 29 of the Code does not contemplate a situation where the execution proceedings in the court relate to an interim order passed by the court in the same suit. The provision contemplates existence of a decree against a person in one suit and institution of another suit by such person against the decree-holder. 29. The application filed by the plaintiff for granting stay of the execution proceedings is not maintainable under Order XXI Rule 29 of the Code for another reason also. The stay of execution contemplated under this provision is till the disposal of the suit. If execution of the interim order of injunction is stayed under Order XXI Rule 29 of the Code, it would have the effect of nullifying the interim order itself. An order of injunction granted under Order XXXIX Rule 1 of the Code is temporary in nature. It would operate only till the disposal of the suit. Such an order has no independent existence dehors the suit unless the life of it is extended in appeal or in a manner known to law. Interim reliefs are granted in the suit for protecting the interest of the parties in the suit. By their very nature, interim reliefs would exist and survive only till the disposal of the suit. Granting stay of execution of an interim order passed in a suit till the disposal of that suit would amount to nullifying the order itself and it is not the object of the provision contained in Order XXI Rule 29 of the Code. 30. Moreover, exercise of the power under Rule 29 of Order XX1 of the Code by the court is discretionary. In Subhas Kumar Singh v. Sheo Balak Singh: AIR 1975 Pat 307 , it has been observed as follows: “It has been urged that the word 'may' used herein should be read as 'shall' and it is urged that the learned Munsiff had no option but to stay the execution. According to Mr. In Subhas Kumar Singh v. Sheo Balak Singh: AIR 1975 Pat 307 , it has been observed as follows: “It has been urged that the word 'may' used herein should be read as 'shall' and it is urged that the learned Munsiff had no option but to stay the execution. According to Mr. Prasad there were just two conditions which had to be fulfilled in order to make it obligatory on the part of the court to stay the execution. They were, firstly, that the suit should be pending in the court which had passed the decree under execution and secondly that the suit should have been filed by the person against whom the earlier decree was passed. Once these two requirements are fulfilled, it is said, the Court had no option but to grant stay. …..... In my view, and it is well settled, the power of the Court under Rule 29 of the Code is discretionary. ....... In my view, the word 'may' occurring in Rule 29 of the Code cannot be read as 'shall' and clearly indicates that the power of the court is discretionary.” (emphasis supplied). 31. In Sri Krishna Singh v. Mathura Ahir : AIR 1982 SC 686 , the Supreme Court has held that the power under Order XXI Rule 29 of the Code has to be exercised with very great care and only under special cases. 32. In the instant case, the court below has properly exercised its discretion and dismissed Ext.P4 application filed by the plaintiff. The impugned order cannot be found to be erroneous or perverse or arbitrary and it does not warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. Consequently, the original petition is dismissed.