D. Arumuga Nadar vs K. Muthulakshmi

V. Ramasubramanian, J.—This Civil Revision Petition arises out of the dismissal of an Application for stay filed by the petitioner under

Order 21, Rule 29 of the Code of Civil Procedure. Heard Mr. B. Kumar, learned Senior Counsel appearing for the petitioner and Mr. S.V.

Jayaraman, learned Senior Counsel appearing for the respondent.

The respondent herein filed a Suit in O.S. No. 6778 of 1993 on the file of XVI Assistant Judge, City Civil Court, Chennai, against the petitioner

herein as well as her own husband, seeking recovery of possession and for damages for use and occupation. By a judgment and decree dated

21.03.2001, the Court below dismissed the Suit.

However, the Appeal filed by the respondent in A.S. No. 134 of 2001 was allowed by a judgment and decree dated 17.07.2003 and the

second Appeal filed by the petitioner in S.A. No. 2006 of 2003 was dismissed on 24.04.2007. Thus, the decree for recovery of possession

passed in favour of the respondent herein attained finality. Therefore, the respondent filed an Execution Petition in E.P. No. 2991 of 2007. At that

stage, the petitioner herein filed a Suit in C.S. No. 986 of 2007 on the file of this Court, seeking declaration that he had prescribed title to the suit

property by adverse possession and for a consequential decree of permanent injunction. Pending Suit, the petitioner sought an interim order of

injunction in O.A. No. 1244 of 2007 restraining the respondent from interfering with his peaceful possession and enjoyment of the suit property.

The petitioner also took out another Application in A. No. 113 of 2008 for interim stay of all further proceedings in E.P. No. 2991 and 2993 of

2007 taken out by the respondent herein on the file of IX Assistant Judge, City Civil Court, Chennai.

By an order dated 07.02.2008, both the Applications, viz., O.A. No. 1244 of 2007 and A. No. 113 of 2008 were dismissed by this Court.

The Appeals filed by the petitioner herein in O.S.A. Nos. 99 and 100 of 2008 were also dismissed by the Division Bench by an order dated

07.03.2008. It is stated that the SLP arising out of the order of the Division Bench was also dismissed.

Thereafter, the petitioner herein filed an Application in E.A. No. 5675 of 2008 on the file of the Executing Court under Order 21, Rule 29 of

CPC for stay of further proceedings in the Execution Petition pending disposal of the Civil Suit in C.S. No. 986 of 2007 pending on the file of this

Court. In view of the events that had happened in the past, the Executing Court dismissed the Application. It is against the said order, the petitioner

is before this Court.

Mr. B. Kumar, learned Senior Counsel appearing for the petitioner contended that the very purpose of Order 21, Rule 29 of CPC is to enable

the Executing Court to grant stay of further proceedings in the Execution Petition, when a suit assailing the original judgment is pending. Order 21,

Rule 29 of the CPC reads as follows:

Order 2.-- Execution of Decrees and Orders:

Rule 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.

The provisions of Order 21, Rule 29 came up for consideration before the Supreme Court in Sri Krishna Singh Vs. Mathura Ahir and Others, .

It was held by the Supreme Court therein that the power to grant interim stay has to be exercised with great care and only in special cases.

Keeping the above principle in mind, if we look at the facts of the present case, it is seen that the petitioner herein was the second defendant in

the first round of litigation in O.S. No. 6778 of 1993. In that Suit, the petitioner took a stand that he was a tenant under the husband of the

respondent herein. But the Court below negatived the contention and held that the petitioner was actually a trespasser. The decree passed in

favour of the respondent by the Lower Appellate Court directing delivery of possession attained finality. Today, the petitioner has come up with

C.S. No. 986 of 2007, claiming adverse possession on the sole basis that he was found by the Court to be a trespasser. In other words, his claim

that he had perfected title by adverse possession is not on the basis of his own pleadings made in the first instance, but on the basis of a finding

rendered by the Court below in the previous round of litigation.

Therefore, while dismissing the Application in O.A. No. 1244 of 2007 for an injunction pending C.S. No. 986 of 2007, I did not find a prima

facie case in favour of the petitioner herein. Apart from dismissing the Application for injunction in O.A. No. 1244 of 2007, the Application for

stay of further proceedings in the Execution Petition was also dismissed by me in A. No. 113 of 2008. There is virtually no difference between the

prayer made in A. No. 113 of 2008 in C.S. No. 986 of 2007 and the prayer made before the Executing Court in E.A. No. 5675 of 2008 under

Order 21, Rule 29 of the Code of Civil Procedure. Therefore, the dismissal of the Application for stay in A. No. l13 of 2008 in C.S. No. 986 of

2007 squarely covers the prayer of the petitioner for stay made before the Executing Court in E.A. No. 5675 of 2008. In such circumstances, I

find no reason to interfere with the order of the Court below, and, hence, the Civil Revision Petition is dismissed. No costs.