Kannammal vs Muthukumaraswami Chetty

Horace Owen Compton Beasley kt., C.J.—This is not a very simple point but after hearing the argument of learned Counsel I am clearly of

opinion that the lower court''s order is wrong. I have been forced to take this view though I admit that upon the construction of Order 21, Rule 29

CPC other courts may take a different view.

The respondent here is the assignee decree-holder and the petitioner is a woman. She is the plaintiff in a suit and it seems to me that, although

the plaint is not artistically and definitely worded, her suit is for damages against the assignee decree-holder for having broken his agreement with

her whereby he agreed to receive in satisfaction of the assigned decree certain bonds and to get satisfaction entered up. It is conceded that a suit of

that nature will lie; and it is argued on behalf of the petitioner that such a suit as that is one which is contemplated by Rule 29 of Order 21, Civil

Procedure Code. That rule reads as follows:

Where a suit is pending in any court against the holder of a decree of 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.

The plaintiff applied to the Court for stay of execution of the defendant''s decree against her whilst the suit was pending. The District Munsif

took the view that Rule 29 of Order 21 CPC did not apply to such a suit as this. I am unable to see why it does not. It is quite true that it may

bring about the result that could not be obtained in any other form of application, namely, an application to an executing Court to stay execution of

the decree by reason of the fact that it had been satisfied and such satisfaction had not been recorded. The result in this case of ordering stay of

execution may be the same as the result would be in the other case if such a procedure were admissible which of course is not. But I quite fail to

see why Rule 29 does not embrace every kind of suit which is maintainable. There is no limitation so far as I can see in the rule and once it is

conceded that this suit is maintainable, it seems to me that the procedure laid down in Rule 29 is at once attracted. 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 decree-holder 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. This is not a suit asking for an injunction

against the decree-holder executing his decree nor is it one asking for a declaration that he is not entitled to execute his decree. It is a simple suit

claiming damages for breach of an agreement. In my opinion the lower Court took an erroneous view of the scope of Order 21, Rule 29, CPC

and that Rule 29 of Order 21 does apply to such a case as this. I am not saying anything here as to the manner in which the lower Court should

exercise its discretion. The order of the lower Court is therefore reversed and the case sent back to the lower Court to be dealt with in the light of

the observations I have made. In view of the fact that the plaintiff may not succeed in the suit, I make no order as to-costs here except to direct

that the costs of this petition will abide the result of the trial. I further direct that the trial of the suit is to take place as soon as possible. Interim stay

has already been granted and it will continue until this matter is dealt with in the lower Court.