M. Madhava Rao and another vs Shantha

Abdul Hadi, J.—The Judgment-debtors, who suffered a Specific Performance decree in O.S. No. 2595 of 1991 on the file of X Assistant

City Civil Court, Madras, have filed this Civil Revision Petition against the dismissal order in their E.A. No. 3425 of 1995 filed under 0.21, R.29,

C.P.C., praying for stay of further proceedings in E.P. No. 2574 of 1995 filed by the respondent-decree-holder in the said suit for executing the

said decree and thereby getting the sale deed in her favour in relation to the suit property. The said stay is asked for, pending disposal of C.S. No.

953 of 1995 on the file of this Court, filed by one Vasanthi, not a party to O.S. No. 2595 of 1991, and C.S. No. 994 of 1995 on the file of this

Court, filed by one Shruthi and one Dhwani, who are also not parties to O.S. No. 2595 of 1981. The allegation in the supporting affidavit to the

said E.A. is that the said Vasanthi is the daughter of the 1st Petitioner herein and pursuant to S. 29-A of the Hindu Succession Act, 1956 which

came into force on 25.3.1989, she is entitled to l/3rd share in the suit property in O.S. No. 2595 of 1981 as coparcener and that, therefore, she

sought for a declaration to that effect in the said suit. Therefore, according to the petitioners, the specific performance decree obtained by the

respondent herein as if the entire suit property belonged to the petitioners, cannot be executed. Likewise, it is also alleged that the other suit C.S.

No. 994 of 95 is for partition of an alleged 2/3rd share in the half share of the 2nd petitioner herein in the suit property in C.S. No. 2595 of 1981.

The above said stay is prayed for in view of the pendency of the above said two suits, according to the petitioner. According to the counter in the

E.A., filed by the respondent, the above referred to C.S. No. 953 of 1995 and C.S. No. 994 of 1995 have been set up only by the petitioners

after the above said decree for specific performance was granted on 13.3.1995 by the first appellate Court in the appeal against O.S. No. 2595 of

1981, only with the ulterior motive of preventing the decree-holder from realising the fruits of the decree. It is also pointed out that, in C.S. No.

953 of 1995, in Application No. 665, of 1995, temporary injunction was sought for by the said Vasanthi to restrain the execution of the above

said specific performance decree in the above said E.P. No. 2574 of 1995 and that the said Application No. 665 of 1995 was dismissed on

18.8.1995. Likewise, a similar application filed in C.S. No. 994 of 1995, viz., Application No. 707 of 1985 was also dismissed on the same day.

I have also been shown a copy of the said order dated 18.8.1995. Further, the above said order dated 18.8.1995 was also confirmed by a

Division Bench of this Court in O.S.A. No. 214 of 1995 by order dated 25.9.1995 therein. In the said judgment, this Court, also observed thus:-

... any alienation pending the suit will be subject to the doctrine of lis pendens. Execution of the decree for specific performance will be subject to

the said doctrine and the interest of the appellant will not be affected by the execution of the decree in favour of the decree holder...

In the above circumstances, the above-said E.A. No. 3425 of 1995 has bene dismissed. Aggrieved by the said decision, the present Civil

Revision Petition has been filed.

Though learned counsel for the petitioners vehemently argues that the Court below has erred in dismissing the execution application, I am unable

to find any substance at all in the argument of learned Counsel for the petitioners. First of all, the said execution application will not lie at all under

0.21 R. 29, C.P.C. The said Rule runs 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.

After quoting the said Rule, the Supreme Court in Shaukat Hussain alias Ali Akram and Others Vs. Smt. Bhuneshwari Devi (Dead) by Lrs. and

Others, has observed thus;-

It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one Court. One is the proceeding in execution

at the instance of the decree-holder against the judgment -debtor and the other a suit at the instance of the judgment-debtor against the decree-

holder. That is a condition under which the Court in which the suit is pending may stay the execution before it.

(Emphasis supplied)

But, in present case, the proceeding in execution, viz., C.R.P. No. 2574 of 1995 is in the City Civil Court and the other suits are pending in the

High Court That a part, the High Court-suits have not been filed by the judgment-debtors herein, but by certain other persons, no doubt against the

decree-holder and the judgment-debtors. Therefore, it is clear that O.21, R. 29, C.P.C. has no application at all to the present Execution

Application No. 3425 of 1995 and the Court below is perfectly justified in dismissing the said application. Further I may incidentally point out that,

in the above said Shaukat Hussain alias Ali Akram and Others Vs. Smt. Bhuneshwari Devi (Dead) by Lrs. and Others, the Supreme Court has

also observed thus:-

But ordinarily Courts, unless they exercise appellate or revisional jurisdiction, do not have the power to stop proceedings in other courts by an

order directed to such courts. For this specific provisions of law are necessary.

No doubt, this observation would only show that the High Court in the above suits ordinarily cannot stop the above said E.P. being proceeded

with. But there is also likewise no specific provision for the said E.P. Court itself to stay its own proceeding.

I may also add, viewed in the above light, there is strictly no necessity to go into the other contentions of learned Counsel for the respondents -

(in which also there may be force, if probed into)- that the above said High Court suits have been only filed at the instigation of the petitioners

herein, after suffering the above said specific performance decree dated 13.3.1995. Further, it must be stated that those High Court suits have not

been initiated by the petitioners herein, nor they seek any relief therein. That apart, the plaintiffs in the said suits themselves sought for a similar relief

as prayed for in the present E.A. No. 3425 of 1995 and have concurrently failed, as stated above. Further, even if the plaintiff succeeds in the said

suits, they will not be prejudiced at all, even according to the above said observation in the order dated 25.9.1995 in the above said O.S.A. 214

of 1995. In the circumstances, there is absolutely no error at all in the impugned order. Hence the Civil Revision Petition is not admitted, but

dismissed. Consequently C.M.P. No. 1090 of 1996 for stay is dismissed.