P. Shanmugham vs K. Manickam

V. Ratnam, J.—This Civil Revision Petition is directed against the order dismissing an application filed by the petitioner under Order 21, rub,

29, Code of Civil Procedure, praying for a stay of operation of the decree in O.S. No. 323 of 1970, District Munsif''s Court, Periyakulam and all

further execution proceedings therein till the final disposal of O.S. No. 85 of 1978, District Munsif''s Court, Periyakulam. The property in question

is an extent of 1 acre and 89 cents in survey No 2281, Thamaraikulatn Village, Periyakulam taluk, Madurai District. One M. C. Gurusamy

Reddiar founded in Krishnapuram village a Vinayakar Temple called ''''Nalam Tharum Vinayakar Temple"" and dedicated the property referred to

earlier 10 the temple under the terms of a deed of settlement dated 14th June, 1945. He was also functioning as the trustee of the temple. On 20th

March, 1968, by a document styled as a deed of transfer of trust, M. G. Gurusamy Reddiar purported to transfer the office of the trustee to one

M. A. Krihnasamy Reddiar, the father of the respondent herein. The father of the petitioner having purchased the property referred to above, set

up his title as against the Vinyakar temple which led to the institution of a suit in O.S. No, 323 of 1970, District Munsif''s Court, Periyakulam, for

recovery of possession of the property, by M.A. Krishnasamy Reddiar. During the pendency of that suit, M. A. Krishnasamy Reddiar died and

the respondent herein got another document dated 9th December, 1970 from M. G. Gurusamy Reddiar transferring the trusteeship and prosecuted

the suit institued by his father M. A. Krisnasamy Reddiar. On 22nd July, 1971, the suit was dismissed and on appeal by the respondent herein in

A. S. No. 205 of 1971, Sub-Court, Dindigul, a decree for recovery of possession of the property was granted in favour of the respondent herein.

The father of the petitioner who figured as the defendant in the suit perferred a Second Appeal in S. A. No. 2334 of 1974 to this Court and during

the pendency of that appeal he died and his legal representatives including the petitioner herein were brought on record and on 6th August, 1975

the second appeal was dismissed confirming the decree of the lower Appellate Court. As against that, the petitioner and others preferred an

application for Special Leave to the Supreme Court of India in SLP (Civil) No. 718 of 1976 and that was also dismissed on 12th January, 1978.

It is the decree in O.S. No. 323 of 1970 as confirmed by this Court as well as the Supreme Court that is about to be executed by the respondent.

Meanwhile, after the dismissal of the SLP by the Supreme Court on 12th January, 1978 the petitioner and his brother purported to obtain a

document styled as trust devolution deed in their favour from the original founder M. G. Gurusamy Reddiar and his son G. Mani under which the

petitioner and his brother claimed to have become trustees and that, therefore, they are entitled to be in possession of the property of the temple as

trustees. The petitioner and his brother further claimed that M. G. Gurusamy Reddiar and his son G. Mani are competent to execute the trust

devolution deed with a view to provide for the succession of trustees for the administration of the temple. Thus claiming that they have become

trustees, the petitioner and his brother instituted O.S. No. 85 of 1978, District Munsif''s Court, Periyakulam against the respondent herein and M.

G. Gurusamy Reddiar and his son G. Mani impleading them as defendants 1 to 3. In the course of the plaint in that suit, the petitioner and his

brother have alleged that the document executed by M, G. Gurusamy Reddiar on 20th March, 1968 in favour of M.A. Krishnasamy Reddiar and

the document dated 9th December, 1970, purporting to be a transfer of trusteeship by M. G. Gurusamy Reddiar in favour of the respondent herein

are documents which are invalid and therefore, the temple was not properly represented in the prior suit O.S. No. 323 of 1970, District Munsif''s

Court, Periyakulam, and the proceedings will not bind it. On the strength of the trust devolution deed stated to have been executed by M. G.

Gurusamy Reddiar and his son G. Mani on 31st January, 1978, the petitioner and his brother claimed that the founder and his son having the

competency to chalk out a line of succession to the office of the trusteeship of the temple, appointed the petitioner and his brother as trustees and,

therefore, they are entitled to the possession of the property of the temple as trustees. It was also the plea of the petitioner and his brother that the

respondent herein cannot continue to represent the temple any longer and, is therefore, disentitled from recovering possession of the property

pursuant to the decree in O.S. No. 323 of 1970. Under these circumstances, in O.S. No. 85 of 1978, District Munsif''s Court, Periyakulam the

petitioner and his brother prayed for a declaration that they are validly constituted trustees and also for a permanent injunction restraining the

respondent herein from executing the decree in O.S. No. 323 of 1970, District Munsif''s Court, Periyakulam and taking all proceedings in

execution thereof and other incidental reliefs. Pending disposal of that suit, the petitioner and his brother also applied in I, A, No. 215 of 1978 in

O.S. No. 85 of 1978 for a temporary injunction restraining the respondent herein from executing the decree in O.S. No 323 of 1970, till the

disposal of that application as well as the suit. That application was resisted by the respondent herein on several grounds which need not be

noticed in extenso for the purposes of the present controversy between the parties. Suffice it to mention that the learned District Munsif of

Periyakulam by an order dated 1st March, 1979 held that merely because the petitioner and his brother claim the right to be the trustees, it does

not mean that they have established prima facie right to be in possession of the property of the temple as trustees and the respondent cannot be

prevented from enjoying the fruits of the decree obtained by him by fighting the litigation up to the Supreme Court. It was also further held that in

the event of the petitioner and his brother succeeding in the suit and establishing that they are the legally constituted trustees of the temple, then it

will be certainly open to them to get delivery of the property from the respondent including a claim for mesne profits. On the conclusions referred

to above, the learned District Munsif, Periyakulam, dismissed the application for injunction filed by the petitioner and his brother and it is not in

dispute that that order has become final. The petitioner, after setting out the institution of O.S. No. 85 of 1978, District Munsif''s Court,

Periyakulam, based on the terms of the trust devolution deed dated 31st January, 1978, sought in E. A. No. 502 of 1978 in O.S. No. 323 of

1970 an order of stay of the operation of the decree as well as the execution proceedings in O.S. No. 323 of 1970 till the disposal of O.S. No. 85

of 1978. The main ground upon which this relief was sought for by the petitioner is that the decree in O.S. No. 323 of 1970 is a nullity as it was

passed on the basis of an invalid document of transfer of trusteeship and, therefore, an invalid decree cannot be put into execution by the

respondent herein as trustee in the face of the trust devolution document dated 31st January, 1978. The petitioner, therefore, stated that in order to

avoid unnecessary complications and also to prevent the respondent from executing a decree which he is not competent to execute, a stay of

operation of the decree and the execution of the same should be granted till the disposal of O.S. No. 85 of 1978. That application was resisted by

the respondent herein on the ground that the petitioner and his brother are only self-styled trustees and that the present petition was nothing except

a belated attempt to attack the decree as well as the status of the respondent as a trustee of the temple. In addition, the respondent also stated that

the petitioner was merely anxious to prolong the proceedings which would enable him to continue to remain in unlawful possession of the property

of the temple and that no ground whatever has been made out for granting stay. The learned District Munsif, Periyakulam, held that having regard

to the dismissal of the injunction petition filed by the petitioner in I.A. No. 215 of 1978, no ground had been made out by the petitioner to stay the

execution proceedings by the respondent on the basis of a decree obtained by him. On this finding, the petition was dismissed. It is the correctness

of this order that is challenged in this revision.

The learned Counsel for the petitioner contends that the petitioner has made out a case for granting stay under the provisions of Order 21, Rule

29, Code of Civil Procedure, especially when the respondent has obtained a decree against the petitioner and a suit by the petitioner is also

pending against the holder of the decree, namely, the respondent herein O.S. No. 85 of 1978, District Munsif''s Court, Periyakulam. It is also the

further contention of the petitioner that the respondent has no locus standi to maintain the application for execution in view of the circumstance that

the petitioner and his brother have since been appointed as trustees by the founder and, therefore, execution proceedings at the instance of the

respondent now would also be incompetent and should, therefore be stayed till the disposal of the suit O.S. No. 85 of 1978. On the other hand,

the learned Counsel for the respondent contends that though the conditions for invoking Order 21. Rule 29, Code of Civil Procedure, may be

present in this case, yet, it is not obligatory on the part of the Court to grant stay, but that is a matter for the discretion of the Court and having

regard to the claim that had been made by the petitioner earlier that be was the owner of the property and the passing of the decree against him by

the Courts inclusive of the Supreme Court, this is not a fit case for the exercise of discretion in favour of the petitioner. He would also contend that

it is unnecessary to stay the proceedings at this stage, but in the event of the petitioner succeeding in establishing his claim as a trustee, he could

certainly recover possession of the property from the respondent and, therefore, there is no need now to stay either the operation of the decree or

the execution thereof. In this connection, it is necessary to consider the scope of Order 21, Rule 29, Code of Civil Procedure, which runs thus:

Where a suit is pending in any Court against the bolder 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.

Under this rule, therefore, if a suit by a judgment-debtor is pending in a Court against the holder of a decree of that Court, the execution of the

decree may be stayed until the disposal of the suit. It is at once obvious that this rule is intended to enable the judgment-debtor and the decree-

holder to adjust their claims against each other and also to avoid a multiplicity of execution proceedings. The requisites before this rule can be

invoked, as pointed out by the Supreme Court in Shaukat Hussain alias Ali Akram and Others Vs. Smt. Bhuneshwari Devi (Dead) by Lrs. and

Others, are two simultaneous proceedings in one Court, namely : (1) a proceeding in execution of the decree, initiated by the decree-holder against

the judgment-debtor; and (2) the pendency of a suit at the instance of the judgment-debtor against the holder of the decree of that Court. In the

present case, it is not in dispute that the respondent-decree-holder has initiated proceedings in execution of the decree in O.S. No. 323 of 1970,

District Munsif''s Court, Periyakulam, against the petitioner who is the judgment-debtor and the petitioner-judgment-debtor has instituted a suit in

O.S. No. 85 of 1978 District Munsif''s Court, Periyakulam, against the respondent-decree-holder in O.S. No. 323 of 1970, District Munsif''s

Court, Periyakulam. The requirements of Order 21, Rule 29, Code of Civil Procedure, are, therefore, prima facie satisfied. But yet, it must also be

remembered that the rule is not an imperative one and the Court as a matter of exercise of its discretion can either grant the stay asked for or

refuse the same. The object of the rule as pointed out by Beasley, C. J. in Kannammal Vs. Muthukumaraswami Chetty, , 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. It is also

further pointed out 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. However, the manner in

which the Court would ordinarily exercise its discretion has also to be considered with reference to the nature of the suit pending and the claims

agitated therein. In Judhistir, v, Surendra AIR 1969 Orissa, 233, Misra, J., points out that no hard and fast rule can be laid down in what cases

stay should be granted or refused. Dealing with matters which should be taken into consideration in the exercise of the discretion under Order 21,

Rule 29, Code of Civil Procedure, by a Court, Misra, J., points out at page 234 thus:

The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for

good reason. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the

decree might succeed. Such suits are also of a very precarious nature. The allegations therein ordinarily would be that the previous decree was

obtained by fraud or collusion or that the decree was not binding on the present plaintiff as the transaction entered into by the judgment-debtor was

tainted with immorality. These are all suits of uncertain and speculative character. Most of these cases are likely to fail the onus being very heavy on

the plaintiff to establish fraud and similar charges. That being the position, a person should not be deprived of the fruits of his decree merely

because suits of frivolous character are instituted and litigants are out after further series of litigations. The decree must be allowed to be executed,

and unless an extraordinary case is made out, no stay should be granted. Even if stay is granted, it must be on suitable terms so that the earlier

decree is not stifled.

No hard and fast rule can be laid down in what cases stay would be granted or refused. But as has already been stated, a rigorous test is to be

applied and in most of the cases prayer for stay is bound to be refused.

To similar effect is the decision in Subhas Kumar Singh and Others Vs. Sheo Balak Singh and Others, . The principles for the exercise of

discretion under Order 21, Rule 29, Code of Civil Procedure, have been laid down in Tolifiqur Rahman v. Nurbanu AIR1976Gau39. Pathak, CJ.,

points out that while exerciseing the discretion conferred under Rule 29 of Order 21, Code of Civil Procedure, the Court should duly consider that

the party who has obtained a lawful decree is not deprived of the fruits thereof except for good and cogent reasons and that so long as the decree

is not set aside by a competent Court, it stands good and effective and should not be lightly dealt with so as to deprive the holder of the lawful

decree of the fruits thereof. It is also pointed out that the allegations made against the decree should also be carefully examined by the Court before

exercising the discretion and that the mere filing of a suit subsequently for setting aside the decree or challenging the same cannot be a ground for

granting stay, unless a strong case on cogent grounds is made out for granting stay. To similar effect is the decision in Quazi Talifiqur Rahman Vs.

Sital Prasad Das and Others, .

In the light of the principles referred to above, if the facts of the present case are examined, on the former occasion, the question of the right of

the respondent to maintain the suit on behalf of the Vinayakar temple has been considered and dealt with in the course of the judgment in A. S.

No. 205 of 1971, Sub-Court, Dindigul, dated 25th March, 1974 and this has been upheld by this Court as well as by the Supreme Court. In view

of this recognition of the right of the respondent to represent the temple in the suit and to recover possession of the property belonging to the

temple, prima facie, the decree obtained by the respondent herein is valid and is also executable. The only allegation against the decree put forth by

the petitioner in the course of his plaint is that the deed of transfer of trusteeship in favour of the respondent was invalid and consequently, the

temple was not properly represented in the prior proceedings and the decree therein is a nullity. As stated already, the question of proper

representation of the temple had been dealt with by the Courts and uniformly it has been held that the respondent is a person entitled to act on

behalf of the temple and also to recover possession of the property of the temple. In view of this decision which cannot be lightly brushed aside

when it has been affirmed by the highest Court, the right of the respondent to execute the decree unfettered in any manner by the petitioner has to

be recognised. Undoubtedly, if the respondent is permitted to recover possession of the property, it would be on behalf of the temple and if later in

the course of the suit the petitioner and his brother succeed in establishing that they are the trustees of the temple properly appointed, then it will be

certainly open to them to get back the property from the respondent herein on the basis of such an adjudication. The attitude of the petitioner and

his brother leaves one with the impression that the suit O.S. No. 85 of 1978, District-Munsif''s Court, Periyakulam, has been conceived with a

view to nullify, if possible the decision of the Supreme Court rendered on 12th January, 1978 dismissing the SLP (Civil) No. 718 of 1976. Within

19 days thereof, the document dated 31st January, 1978, purports to have been executed by M. G. Gurusamy Reddiar and his son G. Mani and

on the basis of this document, the suit has also been instituted immediately in February, 1978. The haste with which the document has been got

executed and the suit had been instituted exposes the anxiety on the part of the petitioner to remain in possession of the property of the temple as

before, though the petitioner and his brother would now claim that they are entitled to do so by virtue of their right as trustees. Considering all the

circumstances of the case, the exercise of the discretion of the Court should be against the petitioner and consequently, the order of the Court

below is affirmed, though for different reasons.

It is unfortunate that the Court below had not adverted to any of these aspects at all, but proceeded to dismiss the petition filed by the petitioner

herein on the footing that the injunction application in I.A. No. 215 of 1978 had already been dismissed. But even so, having regard to the features

disclosed by the pending proceedings in O.S. No. 85 of 1978, this, in my view, is a case where the petitioner ought not to be granted the

discretionary remedy of stay under Order 21, Rule 29, Code of Civil Procedure-The result is, the dismissal of the application by the Court below

is upheld and the Civil Revision Petition is dismissed No costs. However, the learned District Munsif, Periyakulam, is directed to dispose of O.S.

No. 85 of 1978 expeditiously.