H.L. Nantha vs T.C. Ramalingam Pillai

Ismail, J.—This is a petition to revise the order of the learned District Munsif, Tenkasi, dated 21-7-1977 in E. A. No. 128 of 1976 in O. S.

No. 20 of 1974. Admittedly certain suits instituted by the petitioner against the respondent on the file of the Court of the District Munsif, Tenkasi

are pending. Equally admittedly the respondent had obtained a decree against the petitioner in O. S. No. 20 of 1974 on the file of the Sub Court of

Tirunelveli. It is not again disputed that the decree in O. S. No. 20 of 1974 on the file of the Sub Court, Tirunelveli, had been transferred for

execution to the court of the District Munsif, Tenkasi. The consequence is that before the District Munsif, Tenkasi, are pending the suits filed by the

petitioners against the respondent herein and the execution proceedings in O. S. No. 20 of 1974. It is against the background of these facts, the

petitioner filed E. A. No. 128 of 1976 under Order 21 Rule 29 C. P. C. for stay of execution proceedings in O. S. No. 20 of 1974. The learned

District Munsif by the impugned order dismissed the application. Hence the civil revision petition.

The sole ground on which the learned District Munsif dismissed the execution application filed by the revision petitioner is that the decree in O.

S. No. 20 of 1974 on the file of the Sub Court of Tirunelveli was not passed by the District Munsif and therefore he had no competency to stay

the execution proceedings of that decree. In coming to this conclusion, obviously the learned District Munsif has overlooked the amendment made

in Order 21 Rule 29 C. P. Code, by Central Act 104 of 1976. After the amendment, Order 21 Rule 29 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;

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.

As a result of the amendment, the court acquires competency to stay not only the decree which it passed, but also the decree which had been

transferred to it for execution, though passed by another court. The learned District Munsif failed to take note of this important change made in the

relevant provision of the Civil Procedure Code. Hence the civil revision petition is allowed, the order passed by the learned District Munsif is set

aside and the learned District Munsif is directed to dispose of EA No. 128 of 1976 on merits on the basis that he has the jurisdiction to stay the

execution of the decree in O. S. No. 20 of 1974, because that decree had been transferred to his court for execution. There will be no order as to

costs in this petition.