Anil Pavalin vs Rajan Achary

S. Sankarasubban, J.—This C.R.R is filed against the order in E. A. 155/97 in E.P.26/97 in E.P.26/97 in O.S.344/94 of the Munsiff Court, Chengannur. The petitioners filed a petition under O.21 R. 29 for staying the execution of the decree till the disposal of O.S.312/97 pending in the same court. O.S.344/94 was a suit for injunction prohibitory and mandatory against the original first defendant there regarding some items of properties. During the pendency of that suit, the first defendant died and his legal representatives are impleaded. It seems during the pendency of that suit, the property was alienated in favour of the present petitioner. That Suit was decreed. On a perusal of the judgment, it is seen that after filing the written statement, the defendant did not contest the suit. Thus, the suit was decreed only on the basis of the documents produced by the plaintiff. The contention decree passed in the above suit is to be set aside. When he moved the court in suit O.S.312/97, that court was of the view that the petition should be moved before the executing court. So they filed E.A. 155/97 for stay. The present revision is against the order in E. A. 155/97. The executing court has been given power under R.29 to stay the execution of the decree if there is a suit between the judgment debtor and the decree holder. Here during the pendency of the suit, the property has been transferred. The court below was not justified in dismissing the petition on the ground that they are pendente lite purchasers. It is true that they are pendente lite purchasers and that the decree is binding on them. But they have challenged the decree by filing a suit and in such a context, it is duty of the court to find out whether any case has been made out by the petitioners to stay the execution of the decree. On a perusal of the order of the Court below, I find that the court below was carried away by the fact that the petitioners are pendente lite purchasers.

In the above view of the matter, I set aside the order of the Court below, direct the executing court to reconsider the matter. Till the decision is made thereon further proceedings in E.P. 26/97 will stand stayed.

C.R.P. is disposed of as above.