Sumitra And Ors vs Rajshri Mahakalkar And Ors

Sanjay K. Agrawal, J

Heard Mr. B. P. Singh on the question of admission of writ petition and on I.A.No.1 for grant of stay.

By the impugned order, the petitioners'/judgment debtors' application under Order 21 Rule 29 of the Code of Civil Procedure, 1908 has been rejected.

Mr. Singh, learned counsel for the petitioners, would submit that the trial court is absolutely unjustified in rejecting the application under Order 21 Rule 29 CPC.

At this stage, it would be appropriate to notice Order 21 Rule 29 of the CPC, which states as under:-

"29. 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:

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."

The jurisdiction to stay execution of decree under Order 21 Rule 29 of the CPC has to be exercised with great care and only in exceptional and extra-ordinary cases, as the power to grant stay is discretionary.

Though the power to grant stay is discretionary, yet it should be exercised on certain legal principles; so the question for consideration is not whether the Court has got the power to grant stay under Order 21 Rule 29 of the CPC, but the manner in which the Court would ordinarily exercise its discretion vested in it by law.

The fundamental consideration is, when the decree has been obtained by a party, he should not be deprived of the fruits of the decree except for good reasons. 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 very precarious nature. The allegations therein ordinarily would be that 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 and thus, onus being very heavy on the plaintiff to establish fraud and three 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 extra-ordinary 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. The applicability of Order 21 Rule 29 of the CPC cannot be taken lightly and as a matter of right and discretion to exercise the power should be granted only in exceptional and extra-ordinary case made out by the judgment-debtor (See Judhistir Jena v. Surendra Mohanty and another AIR 1969 Orissa 233).

Reverting to the facts of the present case, it is quite vivid that the trial court has passed a decree in favour of the respondents herein way back on 08.09.2016 granting decree of partition and possession. Questioning the decree, the petitioners/judgment debtors have filed First Appeal No.379/2016 before this Court on 02.12.2016 which is pending consideration before this Court and the petitioners have not brought to the notice of this Court any order passed therein. It is not the case of the petitioners that decree was passed on the basis of misrepresentation or fraud and more than two years has left from the date of passing the decree by the trial court and no extra-ordinary or strong ground has been urged to stay the execution of decree. I do not find any merit in the writ petition, it deserves to be and is accordingly dismissed. However, the petitioners are at liberty to proceed in accordance with law. No order as to cost(s).