Komalam vs Radhakrishnan Nair

K. Thankappan, J.—The petitioner -- wife of the third respondent is the applicant in E.A.No. 1357 of 2004 in E.P.No. 420 of 2004 in

O.S.No. 426 of 1986 on the file of the I Additional Munsiff''s Court, Thiruvananthapuram. The said suit was filed by the third respondent herein

for declaration of title and recovery of possession of the plaint schedule property. The suit was decreed in favour of the plaintiff.

The petitioner filed O.S.No. 94 of 1986 before the same Court claiming that the plaint schedule property mentioned in O.S.No. 426 of 1986

was purchased by the third respondent with her funds and hence she is entitled for possession of the plaint schedule property. The Trial Court

allowed the suit filed by the third respondent and dismissed the suit filed by the petitioner. Against the judgment and decree passed in O.S.No. 94

of 1986, the petitioner filed A.S. No. 46 of 1999 which also ended in dismissal. The petitioner then filed R.S.A. No. 1192 of 2004 and this Court

dismissed the Second Appeal as per Ext.P3 judgment. The present application, E.A.No. 1357 of 2004 in E.P.No. 420 of 2004 in O.S.No. 426

of 1986 is filed by the petitioner objecting execution of the decree on the ground that she had filed O.S.No. 139 of 1997 before the Sub Court,

Thiruvananthapuram for arrears of maintenance and future maintenance and the Court passed an order of attachment of the property involved in

O.S.No. 426 of 1986 against the third respondent.

The order of attachment is still in force and in the meanwhile the petitioner filed O.S.No. 254 of 1993 before the Family Court,

Thiruvananthapuram for enhancement of the maintenance granted by the Sub Court, Thiruvananthapuram in O.S.No. 139 of 1977. The said suit is

still pending. Now, the claim of the petitioner before the execution Court is that since the suit, O.S.No. 139 of 1977, filed by her for maintenance

was allowed and an order of attachment was passed, execution of the decree in O.S.No. 426 of 1986 has to be stayed as per the provisions

contained in Order XXI Rule 29 of the Code of Civil Procedure.

Learned counsel appearing for the petitioner submitted that as per the provisions of Order XXI Rule 29 C.P.C., it is the duty of the execution

Court to stay the execution of a decree in a suit if any other suit is pending between the parties. Counsel further submitted that in the suit, O.S. No.

139 of 1977, filed by the petitioner, an order of attachment was passed against the property covered in O.S.No. 426 of 1986. Learned counsel

also contended that in the appeal filed before the District Court, Thiruvananthapuram as well as in the Second Appeal filed before this Court,

though the question of pendency of the suit filed by the petitioner and the order of attachment of the property were considered, no order was

passed restraining the third respondent from executing the decree passed in O.S. No. 426 of 1986.

Learned counsel appearing for the respondents contended that the question of staying execution of the decree passed in O.S.No. 426 of 1986

does not arise as the decree passed by the Trial Court was confirmed by the Appellate Court as well as this Court in appropriate proceedings.

That apart, according to counsel, the provisions of Order XXI Rule 29 is applicable only in cases where any suit is pending between the parties

and decree is sought for execution by the same Court.

Admittedly, the third respondent had filed O.S.No. 426 of 1986 before the I Additional Munsiff''s Court, Thiruvananthapuram and obtained a

decree in his favour. The said decree was challenged before the Appellate Court as well as this Court and as per the judgment in R.S.A. No. 1192

of 2004, this Court held that the third respondent is entitled to execute the decree. This Court had taken the view that even if the wife had obtained

a decree for maintenance against the husband and a charge is created on the property, that by itself will not in any way defeat the right of the

husband to enforce the decree. The question raised before this Court is whether the provisions of Order XXI, Rule 29 of the CPC can be made

applicable to the case on hand. Order XXI Rule 29 C.P.C. reads as follows:

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"".

A reading of the above provision would indicate that when a decree is sought to be executed in the Court where a suit is pending between the

parties, the Court can stay the operation of the decree. The expression ""any Court"" contained in Order XXI Rule 29 cannot be interpreted as any

Court within the territorial jurisdiction of the State. It has to be interpreted as the same Court where both proceedings are pending. Execution of

the decree can be stayed only when both the proceedings are before the same Court. In this context, the decision reported Shaukat Hussain alias

Ali Akram and Others Vs. Smt. Bhuneshwari Devi (Dead) by Lrs. and Others, is very relevant. In the above judgment, the Apex Court while

considering the provisions of OrderXXI Rule 29 held as follows:

For the applicability of Order XXI, Rule 29 there should be two simultaneous proceedings in one Court viz., (1) a proceeding in execution of the

decree of that Court started at the instance of the decree-holder against the judgment-debtor and (2) a suit at the instance of the same judgment-

debtor against the holder of the decree of that Court"".

A similar view was taken by the Apex Court in the decision reported in Sri Krishna Singh Vs. Mathura Ahir and Others, . In the decision reported

in Krishnan Namboodiri v. Unnikrishnan Namboodiri 1998 (2) KLT 380 this Court has clearly stated in paragraph 5 of the judgment that the term

such court"" contained in Order XXI Rule 29 of the CPC means the same Court. In the light of the decisions of this Court as well as the Apex

Court referred to above, this Court is of the view that the order passed by the Trial Court requires no interference.