Balasaheb Gulabrao Salunke vs Anil Raosaheb Deshmukh And Others
2017 Latest Caselaw 1461 Bom

                                         1                  WP No. 11991/2015

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                    WRIT PETITION NO.11991 OF 2015 

  Balasaheb s/o Gulabrao Salunke,
  Aged 65 years, Occ. Pensioner & Agriculture,
  R/o. Khadgaon, Tq. & Dist. Latur.
  Now at - Flat No.102, Aseem Co-operative
  houseing Society, Jayant Palkar Road,
  Worli, Mumbai - 400030            =    PETITIONER

                   VERSUS

  1)       Anil s/o Raosaheb Deshmukh,
           Aged 55 years, Occ. Business,
           R/o. Ambajogai, Dist. Beed.
           Now at-Flat No.10, Ashutosh building,
           Dahanukar Colony, Kotrud, Pune.

  2)       Bapusaheb s/o Raosaheb Deshmukh
           Aged 54 years, Occ. Business,
           R/o Ambajogai, Dist. Beed.
           Now at - 106/9, Parshuram Kuti,
           Erandwane, Pune

  3)       Balasaheb s/o Raosaheb Deshmukh,
           Aged 51 years, Occ. Business,
           R/o Ambajogai, Dist. Beed.
           Now at 13-C, Flat No.3
           Pashima Nagari, Kothrud, Pune
                                         =                 RESPONDENTS 
                               -----
  Mr. S.S. Choudhary, Advocate for Petitioner;
  Mr. V.V. Bhavtankar, Advocate for Respondent No.2.
                                   -----
                               CORAM :  P.R.BORA,J.

DATE :

5 th

April,2017.

ORAL JUDGMENT:

1) Heard. Rule. Rule made returnable

forthwith by consent of learned Counsel appearing

for the parties.

2) Under which circumstances the execution

of the decree can be stayed by invoking Order XXI

Rule 29 of the Code of Civil Procedure, is the

short question, to be determined in the present

petition.

3) The present petitioner had filed Special

Civil Suit No.57/2010 against the present

respondents which has been decreed on 10th

September, 2013. As per the decree so passed,

the present respondents were directed to repay to

the present petitioner, amount of Rs.37,94,140/-

within the period of three months from the date

of decree. The decree also specifies that the

suit property shall be kept under the charge of

Rs.37,94,140/- till recovery of the amount by the

decree holder from the judgment debtors.

4) Since the order passed in the aforesaid

Special Civil Suit was not complied with, the

petitioner initiated the Execution proceedings

vide Regular Darkhast No.4/2015. In the said

Regular Darkhast proceedings, the present

respondents filed an application at Exhibit-30

invoking Order XXI Rule 29 of the Code of Civil

Procedure (for short, CPC) and prayed for staying

the execution proceedings till disposal of

Regular Civil Suit No.73/2013.

5) It was the contention of the respondents

in the aforesaid application that the petitioner

has compelled his wife, who is the real sister of

the respondents, to file a suit for partition and

separate possession bearing Regular Civil Suit

No.73/2013 in the court of Civil Judge, Junior

Division, at Ambejogai. It was the further

contention of the respondents that the suit

property, which is the subject matter of Regular

Civil Suit No.73/2013, is the same property,

which has been attached for recovery of decreetal

amount in Regular Darkhast No.4/2015. It was the

further contention of the respondents that the

petitioner i.e. the decree holder, is deft.No.7

in the said suit and has filed an application in

the said suit for his transposition as plaintiff

No.2 in the said suit. In the backdrop of the

aforesaid facts, invoking the provisions under

Order XXI Rule 29 of the Code, the aforesaid

application was filed at Exh.30 by the

respondents. According to the respondents, since

Regular Civil Suit No.73/2013 was pending between

the petitioner/decree holder and the Respondent

-judgment debtors, the further proceedings in

Regular Darkhast No.4/2015 were liable to be

stayed. The application so filed was resisted by

the decree holder/petitioner. However, the

learned Civil Judge allowed the said application

and thereby stayed the execution proceeding till

disposal of the Regular Civil Suit No.73/2013 on

condition that the judgment debtors shall furnish

bank guarantee to the tune of decreetal amount,

i.e. Rs.37,94,140/- within one month from the

date of the order.

6) Shri S.S.Choudhari, learned Counsel

appearing for the petitioner, submitted that the

impugned order is patently wrong. The learned

Counsel submitted that having regard to the facts

involved in the instant petition, the provisions

under Order XXI Rule 29 of the Code would not

apply. The learned counsel in support of his

contention relied upon the judgment of the

Hon'ble Apex Court in the case of Shaukat Hussain

alias Ali Akram and Ors. Vs. Smt. Bhuneshwari

Devi and Ors. - AIR 1973 SC 528. In view of the

law laid down in the aforesaid judgment, the

learned Counsel prayed for allowing the petition

thereby setting aside the order dated 30th June,

2015 impugned in the present petition.

7) Shri Bhavthankar, learned Counsel for

the respondents, supported the impugned order.

8) I have carefully considered the

submissions advanced by the learned Counsel

appearing for the respective parties. Since the

impugned order is passed under Order XXI Rule 29

of the Code, I deem it appropriate to reproduce

the said provision, which reads thus, -

"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."

9) In the case of Shaukat Hussain (cited

supra), one of the questions for consideration

before the Hon'ble Supreme Court was, - In what

circumstances the execution of the decree can be

stayed under Order XXI Rule 29 of the C.P.C."

While deciding the said issue, the Hon'ble Apex

Court in Para 6 of the said judgment, has held

thus, -

"6. Order XXI, Civil Procedure Code deals generally with the execution of decrees and orders. That order is divided into several topics, each topic containing a number of rules. The first four topics cover rules 1 to 25 and the fifth topic, namely, stay of execution comprises 4 rules, namely, rules 26 to

29. A perusal of these rules will show that the first three rules i.e. rules 26 to 28 deal with the powers and duties of a court to which decree has been sent for execution. Under rule 26, that court can stay the execution of the decree transferred to it for execution for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction over the former for an order to stay execution or for any other order relating to the decree or execution which might have been made by the court of first instance or the appellate court. It will be seen, therefore, that under rule 26 the transferee court has a limited power to stay execution before it. Moreover, under sub-rule (2) if any property is seized by it in the course of execution, it may even order the restitution of the property pending the result of the application made by the judgment-debtor to the court of the first instance or to the appellate

court. Rule 27 says that any such restitution made under sub-rule (2) of rule 26 will not prevent the property of the judgment-debtor from being retaken in execution of the decree sent for execution. Rule 28 provides that any order of the court by which the decree was passed, in relation to the execution of such decree, shall be binding upon the court to which the decree was sent for execution. And then we have rule 29 which deals with a different situation. The rule is as follows :

" Where a suit is pending in any court against the holder of a decree of 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."

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 decree holder 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. That appears to be the plain meaning of the rule."

10) As has been observed by the Hon'ble Apex

Court for invoking Order XXI Rule 29 of the Code,

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. In the instant petition, Regular

Civil Suit No.73/2013 is admittedly pending in

the court other than the court wherein Regular

Darkhast No.4/2015 is pending. Moreover, Regular

Civil Suit No.73/2013 is not filed by the present

respondents, i.e. judgment debtors in Regular

Darkhast No.4/2015. Moreover it is also not in

dispute that R.C.S.No. 73/2013 is not against the

decree-holder of R.D.No.4/2015 and he is only a

formal party to the said suit. Thus, none of the

requirements is satisfied so as to invoke the

provisions under Order XXI Rule 29 of the Code.

Regular Civil Suit No.73/2013 is filed by wife of

the present petitioner against the present

respondents seeking partition and separate

possession of the ancestral property, wherein the

petitioner - decree holder is a formal party.

11) The learned Civil Judge, Junior

Division, while passing the impugned order, has

failed in appreciating the facts, as aforesaid,

and has also failed in understanding the import

of the provision under Order XXI Rule 29 of the

Code. The impugned order, therefore, cannot be

sustained and deserves to be set aside.

12) For the reasons stated above, the

impugned order is quashed and set aside. It

would be however open for the present respondents

to revive the prayer made by them, vide prayer

clause (B), in the application submitted by them

at Exh.30, since the learned Trial Court while

deciding the said application at Exh.30, has not

considered the said prayer on merits.

13) Rule is made absolute in the aforesaid

terms. The writ petition is disposed of

accordingly.

(P.R.BORA) JUDGE bdv/