Mohammad Rafiq vs Satyendrasingh
2023 Latest Caselaw 9777 MP

                                 1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT INDORE
                           BEFORE
               HON'BLE SHRI JUSTICE VIVEK RUSIA
                      ON THE 28 th OF JUNE, 2023
                   MISC. PETITION No. 985 of 2023

BETWEEN:-
MOHAMMAD RAFIQ S/O MOHAMMAD YUSUF
MANSURI, AGED ABOUT 70 YEARS, OCCUPATION:
BUSINESS R/O 65, VARRUCHI MARG MANSURI MARG
MANSURI COMPLEX FREEGANJ UJJAIN (MADHYA
PRADESH)

                                                             .....PETITIONER
(SHRI SHRAVAN KUMAR SHARMA, LEARNED COUNSEL FOR THE
PETITIONER.)

AND
1.    SATYENDRASINGH S/O GOPALSINGH SIKARWAR,
      AGED ABOUT 43 YEARS, R/O EWS A-11 RISHI
      NAGAR COLONY UJJAIN (MADHYA PRADESH)

2.    AJAY S/O K.S. GUPTA, AGED ABOUT 54 YEARS,
      OCCUPATION: ADVOCATE 52/4 DHNWANTRI
      MARG, GRAND HOTAL KE PICHE, UJJAIN
      (MADHYA PRADESH)

                                                          .....RESPONDENTS
(SHRI DHARMENDRA KUMAR MISHRA, LEARNED COUNSEL FOR THE
RESPONDENTS.)
(AJAY GUPTA PRESENT, RESPONDENT NO.2 PRESENT IN PERSON.)

      Th is petition coming on for hearing this day, th e court passed the
following:
                                  ORDER

The petitioner/judgment-debtor has filed the present petition being aggrieved by order dated 18.1.2023 whereby the application filed under Order 21 Rule 29, C.P.C. seeking stay of execution proceedings has been dismissed.

The respondents/decree-holder has initiated execution proceedings of

judgment and decree dated 24.1.2020 passed in Civil Suit No. 26A/2020. Respondents/decree holder filed an application under Order 21 Rule 29 of the C.P.C. on the ground that they have challenged the said judgment and decree by way of Civil Suit No. 465/2022 in which they are seeking declaration to the effect that the judgment and decree dated 24.1.2020 had been obtained by playing fraud. Learned counsel submits that the execution proceedings are liable to be stayed during pendency of the aforesaid suit under the provisions of Order 21 Rule 29, C.P.C. Learned executing Court has dismissed the application on the ground that the aforesaid judgment and decree was passed by way of compromise arrived at between the parties and having a binding

effect and the said judgment and decree can only be challenged in a writ petition under Article 226/227 of the Constitution of India.

Learned counsel appearing for the respondents and respondent No.2 who is present in person submit that in order to defeat the execution of the decree which was passed by way of consent, the civil suit has been filed with mala fide intention and the trial Court has rightly held that the said decree is liable to be challenged in a writ petition under Article 226/227 of the Constitution of India and not by way of civil sit. Hence, this petition be dismissed with costs.

Heard the learned counsel for the parties and perused the material available on record.

The provisions of Order 21 Rule 29 of the C.P.C. are reproduced below :

"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."

It is clear from the aforesaid provisions that the execution proceedings are liable to be stayed during pendency of the civil suit between the decree- holder and judgment-debtor. The order passed on compromise by the Lok Adalat is also a decree under the provisions of the C.P.C. and liable to be executed. Hence, during pendency of the civil suit between the decree-holder and judgment-debtor the execution proceedings are liable to be stayed.

Accordingly, this petition is allowed. The impugned order dated 18.1.2023 is set aside and the execution proceedings are stayed till pendency of the civil suit between the decree-holder and the judgment-debtor.

No order as to costs.

(VIVEK RUSIA) JUDGE Alok

Digitally signed by ALOK GARGAV Date: 2023.07.01 15:55:07 +05'30'