Louis Mary vs Paval
2021 Latest Caselaw 22351 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE V.G.ARUN
  TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA,
                             1943
                      CRP NO. 239 OF 2021
        OS 40/1974 OF PRINCIPAL MUNSIFF COURT,   PALAKKAD
REVISION PETITIONER/S:

    1       LOUIS MARY
            AGED 85 YEARS
            W/O.LATE MICHAEL RAJ, RESIDING AT PAMPAMPALLAM,
            PUDUSSERY, PALAKKAD.
    2       ANTHONY PAVIL RAJ
            AGED 59 YEARS
            S/O.LATE MICHEAL RAJ, RESIDING AT PAMPAMPALLAM,
            PUDUSSERY, PALAKKAD.
    3       JOSEPH AMAL RAJ
            AGED 58 YEARS
            S/O.LATE MICHEAL RAJ, RESIDING AT PAMPAMPALLAM,
            PUDUSSERY, PALAKKAD.
            BY ADVS.
            RAJESH SIVARAMANKUTTY
            K.VIJINA
            ARUL MURALIDHARAN

RESPONDENT/S:

    1       PAVAL
            AGED 70 YEARS
            S/O.SELVAMUTHU, MANGALAM CHALLA, PAMPAMPALLAM,
            PUDUSSERY EAST, PALAKKAD, PIN - 687 621.
    2       ANTHONI AMMAL
            D/O.SELVAMUTHU, AGE NOT KNOWN, MANGALAM CHALLA,
            PAMPAMPALLAM, PUDUSSERY EAST, PALAKKAD, PIN -
            678 621.
    3       MARY JUMINAL
            D/O.SELVAMUTHU, AGE NOT KNOW, MANGALAM CHALLA,
            PAMPAMPALLAM, PUDUSSERY EAST, PALAKKAD, PIN-
            678 621.
    4       FRANCIS
            S/O.SELVAMUTHU, AGE NOT KNOWN, MANGALAM CHALLA,
            PAMPAMPALLAM, PUDUSSERY EAST, PALAKKAD, PIN-
            678 621.
 CRP No.239 of 2021
                                 -2-


     5       MARTIN ANTHONIRAJ
             S/O.SELVAMUTHU, AGE NOT KNOWN, MANGALAM CHALLA,
             PAMPAMPALLAM, PUDUSSERY EAST, PALAKKAD, PIN -
             678621.
     6       HRIDAYAMARY
             W/O.LATE ANTHONIRAJ, AGE NOT KNOWN,
             CANALPIRIVU, MANGALATHANCHALLA, PALAKKAD, PIN -
             678 621.
     7       PEETAR
             S/O.LATE ANTHONIRAJ, AGE NOT KNOWN,
             CANALPIRIVU, MANGALATHANCHALL, PALAKKAD, PIN -
             678621.
     8       SAHAYALATHA
             D/O.LATE ANTHONIRAJ, AGE NOT KNOWN,
             CANALPIRIVU, MANGALATHANCHALLA, PALAKKAD, PIN -
             678 621.
     9       ARKATHAMMAL
             W/O.SUBRAMANYAN, AGE NOT KNOWN, CANALPIRIVU,
             MANGALATHANCHALLA, PALAKKAD, PIN - 678 621 (R-1
             ARRYAED IN THE IMPUGNED ORDER, IS NO MORE AND
             HENCE NOT IMPLEADED HEREIN).
             BY ADVS.
             SARATH M.S.
             B.PREMNATH (E)


         THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
31/8/2021, THE COURT ON 09.11.2021     DELIVERED THE FOLLOWING:
 CRP No.239 of 2021
                                      -3-



                                 ORDER

Dated this the 9th day of November, 2021

The revision petitioners are some of the

judgment debtors in E.P.No.334 of 2011 in

O.S.No.40 of 1974 of the Principal Munsiff's

Court, Palakkad and are aggrieved by the

dismissal of their application (E.A.No.99 of

2020), seeking stay of the execution proceedings

filed under Order XXI Rule 29 of CPC. The

essential facts are as under;

E.P.No.334 of 2011 is filed for executing the

final decree for partition in O.S.No.40 of 1974.

The final decree was passed by the trial court

based on a compromise arrived between the

sharers. The judgment and decree was challenged

up to the second appeal stage, by certain

persons claiming to be the assignees of some of

the shares. The second appeals were disposed of,

confirming the final decree and recording the CRP No.239 of 2021

submission that the properties sold to the

appellants therein, is set apart to the shares of

those sharers, who had sold the properties to the

appellants. Further, the trial court was directed

to ensure that the properties thus set apart are

allowed to be taken possession of by the

appellants, in the final decree proceedings

itself. In the second appeals (SA No.892 of 1995

and connected cases), the petitioners had been

arrayed as respondents 16 to 18.

2. Before the execution court, the

petitioners filed a petition under Order XX1 Rule

58 CPC claiming to be in possession of a portion

of the decree schedule property, on the strength

of a purchase certificate obtained by their

father and an agreement for sale entered into

with some of the sharers. The claim petition, as

also the appeals filed against that order, were

dismissed. Thereupon, the petitioners filed

O.S.No.139 of 2020 before the Additional CRP No.239 of 2021

Munsiff's Court, Palakkad seeking permanent

prohibitory injunction against the

defendants/decree holders in O.S.No.40 of 1974.

Simultaneously, E.A.No.99 of 2020 was filed

before the execution court, seeking stay of the

proceedings under Order 21 Rule 29. The

petitioners contended that they were not aware of

the compromise decree in O.S.No.40 of 1974, which

the respondents refuted by submitting that the

petitioners were impleaded as parties in the

final decree proceedings and that, in spite of

being served with notice, they had not filed

objection to the execution petition. Moreover,

the claim petition filed by the petitioners was

dismissed and that order had attained finality.

3. The exercise of power under Order XXI

Rule 29 being the legal question involved, the

provision is extracted here under;

"29.Stay of execution pending suit between decree-holder and judgment-debtors.--

Where a suit is pending in any Court against CRP No.239 of 2021

the holder of a decree of such Court 2[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.]"

On a plain reading of the provision, it is

evident that in order to stay the execution of a

decree, the person against whom a decree is

passed must have filed a suit against the holder

of that decree and that suit, as well as the

execution proceedings at the instance of the

holder of the decree, should be pending before

the same court. In Sri Krishna Singh v. Mathura

Ahir [(1981) 4 SCC 421], the Honourable Supreme

Court has held that the jurisdiction to stay

execution proceedings by exercising the power

under Order XXI Rule 29 is vested only in the

court which passed the decree. The Apex Court has

also sounded a word of caution by observing that CRP No.239 of 2021

the power under Order XXI Rule 29 has to be

exercised with great care and only in special

circumstances. In the instant case, the decree is

being executed before the Principal Munsiff's

Court and the suit is pending before the

Additional Munsiff's Court. Being so, the

requirement that the execution proceedings and

the suit should be pending before the same court,

is not satisfied.

4. The other requirement is that the suit

should be filed by the person against whom the

decree was passed. The pleadings reveal that the

petitioners were not parties to the suit

(O.S.No.40 of 1974) and were impleaded only in

the final decree proceedings. As such, the

petitioners do not fall within the meaning of the

words 'person against whom the decree was

passed'. The essential conditions for invoking

the power nuder Order XXI Rule 29 being absent,

the court below was fully justified in dismissing CRP No.239 of 2021

the application. The contention of the

respondents that the suit is barred by res

judicata, the petitioners being parties to the

final decree proceedings and the second appeals,

being an issue to be decided by the trial court,

is left unanswered.

In the result, the civil revision petition is

dismissed.

Sd/-

V.G.ARUN JUDGE Scl/