Deepak And Another vs Distt. Judge, Hardoi And 8 Others
2023 Latest Caselaw 9684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 

 
Court No. - 22
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1271 of 2023
 

 
Petitioner :- Deepak And Another
 
Respondent :- Distt. Judge, Hardoi And 8 Others
 
Counsel for Petitioner :- Anurag Narain Srivastava,Sudhanshu Tripathi
 

 
Hon'ble Manish Mathur,J.

Heard Mr. Anurag Narain Srivastava, learned counsel for the petitioners and Mr. Sharad Dwivedi, learned counsel for opposite party no.3.

Vide earlier order dated 24th March, 2023, notices to opposite party nos.2, 4 and 9, being proforma in nature, were dispensed with.

Counter and rejoinder affidavits filed on behalf of parties today are taken on record.

Petition under Article 226 of the Constitution of India has been filed raising challenge to the order dated 10th February, 2023 passed in Civil Revision No.6 of 2023 as well as order dated 21st December, 2022 passed by the trial Court under Order XXI Rule 29 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") as well as revisional order dated 06th March, 2023 affirming the same.

Learned counsel for the petitioner submits that initially Regular Suit No.355 of 1988 was filed by the opposite party no.3 against late Suresh Chandra initially seeking relief of permanent injunction and subsequently by amendment, the relief of possession. The said Suit although was initially dismissed on 08th May, 1996 but Appeal No.115 of 1996 was allowed by means of judgement and order dated 25th September, 2001. Said Appellate Order was thereafter challenged in Second Appeal No.422 of 2001 and was dismissed on merits on 23th November, 2001 where after Execution Application No.1 of 2002 was filed by the opposite party no.3. It is relevant to indicate that the present petitioner was not a party to any of the proceedings.

During pendency of the execution proceedings, the present petitioner filed Regular Suit No.474 of 2005 against the opposite party no.3 for permanent injunction which is still pending consideration. During pendency of the said Suit proceedings, an Application under Order XXI Rule 29 of the Code was filed by the petitioner on 19th October, 2005 in the execution proceedings. The said application was rejected vide order dated 18th August, 2009 but Civil Revision No.79 of 2009 filed therein was allowed vide judgment and order dated 16th November, 2010 and the issue was remanded for consideration afresh. After remand, the said application for stay of execution proceedings was rejected vide order dated 21st December, 2022 which was challenged in Revision No.6 of 2023 and which has been rejected by means of impugned order dated 10th February, 2023.

Learned counsel for petitioner submits that the Regular Suit No.355 of 1988 was filed behind the back of petitioner who also had a titular interest in the Suit property. It is submitted that the petitioner did not have any notice of either the Suit or subsequent proceedings and had therefore filed the Regular Suit No.474 of 2005 against opposite party no.3 claiming relief of permanent injunction. It is further submitted that when petitioner came to know about the execution proceedings pending at the instance of opposite party no.3, the said application under Order XXI Rule 29 of the Code was filed. It is submitted that the petitioner has not filed any objection under Section 47 of the Code in execution proceedings.

It is submitted that the trial Court has rejected the application without considering the impact of Suit filed by petitioner in execution proceedings particularly to the effect that petitioner also had an interest in the Suit property and therefore in case of completion of execution proceedings, he would naturally be aggrieved by the said order and therefore it was incumbent upon the trial Court to have stayed execution proceedings till adjudication of Regular Suit instituted by petitioner. It has been further submitted that the trial Court as well as Revisional Court has lost sight of the purpose of Order XXI Rule 29 of the Code. He has also placed reliance upon the Uttar Pradesh Judicial Service Rules, 2001 to submit that Civil Judge, Senior Division means and includes various other judicial authorities including any member of the service posted under any other nomenclature in terms of Rule 4 (o) of the aforesaid Rules. In keeping with the aforesaid statement, it is further submitted that the terminology used under Order XXI of Rule 29 of the Code would include not only the Civil Judge, Senior Division but also the Additional Civil Judge, Senior Division since Regular Suit No.474 of 2005 is pending consideration in the Court of Additional Civil Judge, Senior Division, Hardoi and execution proceedings are pending in the Court of Civil Judge, Senior Division, Hardoi. He has also placed reliance on the judgments rendered by Co-ordinate Benches of this Court in the case of Bansraj and Anr. vs. Jeet Narayan and Ors. reported in 2017 (35) LCD 1708 and Guru Dayal vs. Vedmati reported in 2015(1) ARC 869 to buttress his submissions.

Mr. Sharad Dwivedi, learned counsel appearing on behalf of opposite party no.3 as refuted submissions advanced by learned counsel for the petitioner with the submission that the provisions of Order XXI Rule 29 of the Code will be inapplicable in present facts and circumstances particularly when the Suit instituted by petitioner was filed subsequent to institution of execution proceedings and therefore cannot be said to be simultaneous proceedings. It is also submitted that since the execution and Regular Suit are pending in separate Courts, then the provision of Order XXI Rule 29 of the Code would be inapplicable. It is further submitted that even otherwise the aforesaid provisions are not to be made applicable in a mechanical manner, otherwise no decree can ever be satisfied and therefore the word 'pending' in Order XXI Rule 29 of the Code would be of particular importance. It has also been submitted that the application has been rightly rejected. Learned counsel has placed reliance on the following judgments:-

1. Satyawati vs. Rajinder Singh reported in (2013) 9 SCC 491

2. Shaukat Hussain @ Ali Akram and Others vs. Smt. Bhuneshwari Devi (Dead) by L.RS. and Others reported in 1972 2 SCC 731

3. Krishna Singh vs. Mathura Ahir and Others reported in AIR 1982 Supreme Court 686

4. Balammal & Others vs. Muthiar Begum & Another reported in 2013-5-L.W. 9

5. Sikandar Mohammad Ali Dalal and another vs. Babu Hanumanth Mindolkar deceased by his Lrs and Others in Writ Petition No.103071 of 2017 ( in the High Court of Karnataka, Dharwad Bench)

For the purposes of determination of present Lis, the applicability of Order XXI Rule 29 of the Code is required to be analyzed as per applicable provision which is as follows:-

"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 aforesaid provision has subsequently been amended as applicable to Allahabad High Court and is in the following manner:-

"ALLAHABAD.- In Rule 29-

(1) insert the comma and thereafter the words "or any person whose interests are affected by the decree, or by any order made in execution thereof" after the words "was passed ind before the words "the Court may";

(2) delete the words "on such terms as to security or otherwise occurring in the rule;

(3) substitute "if" for "as" before the words "it thinks fit"; and

(4) add the following as proviso to the said rule, namely:

"Provided that in all cases where execution of the decree is stayed under this ne the Court shall require the person seeking such stay to furnish such security as it may deem fit." (1-6-1957)."

A perusal of Order XXI Rule 29 of the Code makes it evident that the same would be applicable in case 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 a person against whom the decree is passed or any person whose interest is affected by the decree or any order made in execution thereof (as per Allahabad amendment).

The aforesaid aspects of 'such Court' has been defined by Hon'ble the Supreme Court in the case of Shaukat Hussain (supra) in the following manner:-

"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. If that was the only condition, Mr. Chagla would be right in his contention, because admittedly there was a proceeding in execution by the decree-holder against the judgment-debtor in the court of Munsif 1st Gaya and there was also a suit at the instance of the judgment-debtor against the decreeholder in that court. But there is a snag in that rule. It is not enough that there is a suit pending by the judgment-debtor, it is further necessary that the suit must be against the holder of a decree of such court. The words "such court" are important. "Such court" means in the context of that rule the court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that court.T hat appears to be the plain meaning of the rule.

It is true that in appropriate cases a court may grant an injunction against a party not to prosecute a proceeding in some other court. 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. Rule 29 clearly shows that the power of the court to stay execution before it flows directly from the fact that the execution is at the instance of the decree- holder whose decree had been passed by that court only. If the decree in execution was not passed by it, it had no jurisdiction to stay the execution. In fact this is emphasised by rule 26 already referred to. In the case before us the decree sought to be executed was not the decree of Munsif 1st Court Gaya but the decree of the Subordinate Judge, Gaya passed by him in exercise of his Small Cause Court jurisdiction. It is, therefore, obvious that the Order staying execution passed by the Munsif, Gaya would be incompetent and without jurisdiction."

From reading of aforesaid judgment it transpires that the principal consideration of Hon'ble the Supreme Court with regard to the words 'such court' means in the context of that rule, the Court in which Suit is pending. In other words, the Suit instituted against the decree holder and execution proceedings should simultaneously be pending in the same Court. Obviously, the proposition which would be basis of aforesaid judgment is that one Court cannot stay proceedings of another Co-ordinate Court. Hon'ble the Supreme Court in the aforesaid judgment has also referred to judgment rendered by this Court in the case of Inayat Beg vs. Umrao Beg reported in AIR 1930 AHD 121 to hold that even in case where a decree is transferred for execution to another Court, provisions of Order XXI Rule 29 of the Code would be inapplicable. The dissenting view of Calcutta High Court was overruled.

The provisions of Section 37 of the Code have also been adverted to explain the expression 'Court which passed a decree' in the following manner:-

"Section 37. Definition of Court which passed a decree.- The expression "Court which passed a decree," or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit."

In the present case, it is admitted between the parties that while Regular Suit proceedings are pending in the Court of Additional Civil Judge, Senior Division, Hardoi, the execution case is pending consideration before Civil Judge, Senior Division, Hardoi. Obviously both the Courts are different and cannot be construed to be same Court to come within the definition of 'such court' as envisaged in Order XXI Rule 29 of the Code.

At this stage, learned counsel for the petitioner has drawn attention to the fact that at the time of filing of application under Order XXI Rule 29 of the Code, the Suit as well as execution proceedings were pending in the same Court of Additional Civil Judge, Senior Division, Hardoi but at the time of final adjudication of the application by means of impugned order, they were pending in separate Courts. The aspect of proceedings having been transferred has already been considered by Hon'ble the Supreme Court in the case of Shaukat Hussain (supra) in the following manner:-

"In Inayat Beg v. Umrao Beg AIR 1930 All 121 (1) the Allahabad High Court had held that where a decree was transferred for execution to a court, the latter could not, under Order 21 rule 29 C.P.C., stay execution of that decree in a suit at the instance of the judgment-debtor, the reason being that the decree sought to be executed was not the decree of 'such court', that is, the court in which the suit was pending. That view was dissented from by the Calcutta High Court in Sarada Kripa v. The Comilla Union Bank(2). The reasoning was that the Privy Council had held in Maharajah of Bobbili v. Narasarajupeda Srinhulu (3 ) that on transfer of a decree, the original court had ceased to have jurisdiction by virtue of section 37 C.P.C. The holder of a decree of 'such court' will include the court to which the decree has been transferred, the latter having the same powers in executing the decree as if it had been passed by it under section 42 C.P.C.

The above reasoning in the Calcutta case is based upon erro- neous assumptions. The Privy Council was not concerned in Maharajah of Bobbili v. Narasarajupeda Srinbulu(3) with the impact of sections 37 & 42 on Order 21 rule 29 C.P.C. It was only concerned to see whether the District Court was the 'proper court' within the meaning of Art. 182(5) of the 1st Schedule of the Limitation Act, 1908 in which to apply 'for execution or to take same step in aid of execution'."

Upon applicability of aforesaid judgment, it is evident that even where a decree is transferred for execution, stay of that decree cannot be sought under Order XXI Rule 29 of the Code since it would not come within the definition of 'such court' i.e. the Court in which the Suit is pending. In view of the aforesaid, even after transfer of execution proceedings, in the considered opinion of this Court the said judgment will apply with full vigour. The aforesaid judgment of Shaukat Hussain (supra) has thereafter been followed with approval in the subsequent judgment of Krishna (supra) in the following manner:-

"We are fortified in our view by a decision of this Court in Shaukat Hussain @ Ali Akram and Ors. v. Smt. Bhuneshwari Devi (1973) 1 SCR 1022 : (AIR 1973 SC 528), where this Court observed as follows :

"Rule 29 clearly shows that the power of the Court to stay execution before it flows directly from the fact that the execution is at the instance of the decree-holder whose decree had been passed by that court only. If the decree in execution was not passed by it, it had no jurisdiction to stay the execution."(Emphasis supplied)"

The aspect of the word 'where the Suit is pending' is also of particular importance since the same connotes that a Suit filed against holder of a decree of such Court should be pending as on the date when decree is sought to be executed which has also been considered by High Court of Madras in the case of Balamnal and others (supra) in the following manner:-

"21.Further, under Order XXI Rule 29 CPC, to stay the execution of the decree, the following conditions must be satisfied viz.:

a)there must be simultaneous proceedings;

b)an execution by the decree holder must be pending against the judgment debtor;

c)the judgment debtor must have filed a suit against the decree holder; and

d)the suit must be pending.

22.In so far as this case is concerned, the first condition viz., there must be simultaneous proceedings, is not at all satisfied by the revision petitioners herein. The suit in O.S.No.270/2004 was filed in the year 2004 and the suit was decreed on 22.06.2005. The appeal was filed in the year 2005 and the same was dismissed on 10.10.2006. The second appeal was filed in the year 2006 and the same was also dismissed on 27.01.2011. The suit in O.S.No.104/2012 was filed on 20.04.2012 whereas the execution petition in E.P.No.107/2011 was filed on 02.11.2011. In such circumstances, it cannot be said that simultaneous proceedings are pending so as to invoke Order XXI Rule 29 CPC.

23.Even assuming that simultaneous proceedings are pending and even all the conditions of Order XXI Rule 29 CPC get satisfied, still staying the execution of the decree is not automatic, as the Execution Court has to exercise its discretion whether by staying the decree, great injustice would be caused to the decree holder or not."

In the aforesaid case also it is evident that execution proceedings were filed prior to institution of Regular Suit against the decree holder and in such circumstances, High Court at Madras has held that the same would not come within the definition of 'simultaneous proceedings' so as to invoke provisions of Order XXI Rule 29 of the Code.

In another judgment rendered by the High Court of Karnataka in the case of Sikandar Mohammad Ali Dalal (supra), the applicability of Order XXI Rule 29 of the Code has been defined as follows:-

"13. The issue regarding applicability of Order 21 Rule 29 CPC can be examined from yet another angle. It is an undisputed fact that the instant execution proceedings were instituted by the petitioners/ decreeholders against the respondent/ judgment debtor in the year 2012 while the suit in O.S. No. 22/2016 was instituted by the respondent/ judgment debtor subsequently , i.e., in the year 2016. It is relevant to state that Order 21 Rule 29 CPC to be applicable, it is also essential that the suit ought to be pending as on the date of institution of the execution proceedings and Order 21 Rule 29 CPC will not apply to suits which are instituted subsequent to institution of the execution proceedings. To put it differently, the power of the executing Court to stay its own proceedings can be invoked only in cases where a suit has already been instituted by the judgment debtor prior to institution of the execution proceedings and the same will not apply to suits which are instituted subsequent to institution of the execution proceedings. Any another interpretation or construction placed on Order 21 Rule 29 CPC will lead to disastrous consequence since every judgment debtor would be in a position to scuttle, stall and obstruct the execution proceedings by filing a suit after institution of the execution proceedings seeking to enforce the decrees which have attained finality and become conclusive and binding upon judgment debtor. Viewed from this angle also, in the undisputed facts of the instant case which disclose that the execution proceedings were instituted prior to institution of the suit in O.S. No. 22/2016 filed by the respondent/ judgment debtor, Order 21 Rule 29 CPC would be inapplicable to the facts of the instant case and on this score also, the application I.A. No. 12 was liable to be dismissed.

14. It is well settled that invoking the provision contained in Order 21 Rule 29 CPC is discretionary and should be exercised judiciously and not mechanically as a matter of course. It is equally well settled that mere satisfaction of the pre-conditions stipulated in Order 21 Rule 29 CPC is not sufficient for execution proceedings to be stayed and the power under this Rule has to be exercised only in exceptional cases where the interest of justice requires it and the fundamental consideration should be that the decreeholder should not be deprived of the fruits of the decree, except for compelling reasons and unless an extraordinary case is made out, no stay should be granted and the decree should be allowed to be continued.

17. As can be seen from the aforesaid judgments, the principles underlying Order 21 Rule 29 CPC can be summarized as under:

a) That, Order 21 Rule 29 CPC is applicable only if the suit and the execution proceedings referred to in the said provisions are pending before the very same Court and not before two different courts which are not of co-ordinate jurisdiction;

b) That the said provisions will not apply if the suit is instituted subsequent to institution of the execution proceedings: In other words, the said provision would apply only if the suit is instituted prior to institution of the execution proceedings and in the event the execution proceedings have already been instituted, mere institution of suit subsequently and its pendency cannot be made the basis to invoke Order 21 Rule 29 CPC;

C) The power and jurisdiction to stay its own proceeding pending before itself by the executing Court has to be exercised only under extraordinary and exceptional circumstances and not as a matter of course and care/ caution has to be taken by the executing Court to find out if staying its own proceedings would result in abuse of process of law and in that event, the executing Court would not stay further proceedings under these provisions."

In the present case, for the purpose of applicability of aforesaid judgment, the application preferred by the petitioner under Order XXI Rule 29 read with Section 151 of the Code is also required to be adverted to in which the only ground taken is that in the Suit filed by the petitioner subsequently, the issue of title over the Suit property is also required to be adjudicated and therefore prayer has been made for stay of execution proceedings pertaining to aforesaid Suit property.

A reading of the aforesaid application makes it evident that the application has been drafted in a very cursory manner. No specific reason has been indicated for invocation of provisions of Order XXI Rule 29 of the Code particularly the fact that no explanation has been furnished as to how the petitioner was unaware of the initial Suit proceedings pending since the year 1988 and that too when the petitioner has staked a claim in Suit property on the basis of co-ownership. It is also a relevant factor to be considered that the real brother of petitioner was party to the initial Suit proceedings in Regular Suit No.355 of 1988 and in case petitioner was claiming co-ownership of the Suit premises, it does not stand to reason that he was or could have been unaware of the aforesaid Suit proceedings which culminated in proceedings right up-till this Court in Second Appellate Jurisdiction.

Although the provisions of Order XXI Rule 29 of the Code empower the Executing Court to stay the execution of decree, at the same time, it is evident that such a power is not to be exercised in a cursory or mechanical manner but in exceptional circumstances only when a Suit against the decree holder is pending consideration at the time of filing of execution. Applying the aforesaid provisions to Suits filed subsequent to execution proceedings would lead to absurd results whereby no decree of any Court of competent jurisdiction can ever be satisfied. This cannot be the meaning and purpose of Order XXI Rule 29 of the Code particularly keeping in view the specific provisions of Rule 29 of the Code itself which indicates that a Suit should be pending against the holder of a decree or of a decree which has been executed. The obvious conclusion of the word 'pending' is that the Suit against the judgment decree holder should be pending as on the date of institution of execution. This Court is in respectful agreement with the judgments rendered by the High Courts of Madras and Karnataka.

Another aspect to be considered is that Hon'ble the Supreme Court in the case of Satyawati (supra) deprecated unreasonable delays in execution of decrees rendered by Courts of competent jurisdiction in the following manner:-

"14. This Court, again in the case of Marshall Sons & Co. (I) Ltd. vs. Sahi Oretrans (P) Ltd. & Anr. [ (1999) 2 SCC 325] was constrained to observe in para 4 of the said judgment that

?4. ?..it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes long time?..?

16. As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain."

It is also relevant to indicate that any person having an interest in the Suit property with regard to which a decree has been passed has a remedy not only under Section 47 but also under Rule XXI Rules 97 to 104 of the Code due to which also the provisions of Order XXI Rule 29 of the Code are required to be used only in exceptional circumstances.

With regard to reliance placed upon U.P.Judicial Services Rules, 2001 is concerned, it is quite evident that the same pertains to service regulation of judicial officers, which would be administrative in nature and by no stretch of imagination can be deemed to include judicial proceedings as has been submitted.

So far as the judgments relied upon by learned counsel for the petitioner are concerned, reading of the same makes it evident that the same have been passed only on the ground that the trial Court had passed orders impugned therein without considering the provisions of Order XXI Rule 29 of the Code and therefore the petition had been allowed remanding the cases for fresh consideration in terms of the said provision. A reading of the aforesaid judgments makes it evident that no proposition of law nor any ratio decidendi is evident in the aforesaid judgments and as such in the considered opinion of this Court would not have any binding nature.

This Court as such is in respectful agreement with the summary of principles pertaining to Order XXI Rule 29 of the Code as indicated herein-above in the case of Sikandar Mohammad Ali Dalal (supra) by the High Court of Karnatka.

In view of the aforesaid discussion, the provisions of Order XXI Rule 29 of the Code being inapplicable in the present facts and circumstances of the case, no exception can be taken to the orders impugned.

Resultantly, the petition being devoid of merits is dismissed.

Order Date :- 4.4.2023

Arnima