Madhya Pradesh High Court
Farookh Ahmed vs Pramendera Shrivastava on 4 October, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 4 th OF OCTOBER, 2023
MISC. PETITION No. 5769 of 2023
BETWEEN:-
FAROOKH AHMED S/O IJHAAR AHMED, AGED ABOUT
48 YEARS, OCCUPATION: SELF EMPLOYED R/O HOUSE
NO. 143, SHAHID NAGAR, MEDICAL HOSTEL ROAD,
BHOPAL, DISTRICT BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)
AND
1. PRAMENDERA SHRIVASTAVA D/O LATE
MAHENDRA SHRIVASTAVA, AGED ABOUT 50
YEAR S, R/O HOUSE NO. 143, SHAHID NAGAR,
MEDICAL HOSTEL ROAD, BHOPAL, DISTRICT
BHOPAL (MADHYA PRADESH)
2. SMT. LUBNA KHAN W/O SHAHARYAR KHAN,
AGED ABOUT 36 YEARS, R/O HOUSE NO. 143
MEDICAL HOSTEL ROAD SHAHEED NAGAR,
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(NONE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
T h is misc. petition has been preferred by the petitioner/judgment
debtor/defendant challenging the order dated 07.08.2023 passed by Ninth Civil
Judge Senior Division, Bhopal in Execution Case No.36-A/2021, whereby
petitioner's application under Order 21 Rule 29 CPC has been dismissed.
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 10/7/2023
10:13:18 AM
2. Learned counsel for the petitioner submits that an exparte judgment and
decree of eviction as well as for arrears of rent was passed against the petitioner
and in favour of respondent No.1 on 27.08.2014 in Civil Suit No.179-A/13
which has already been set aside on 20.09.2016 upon filing application under
Order 9 Rule 13 CPC and the order dated 20.09.2016 has attained finality due
to dismissal of miscellaneous civil appeal on 11.05.2017 as well as Civil
Revision No.302/2017 on 29.02.2020. Learned counsel further submits that
exparte judgment and decree dated 27.08.2014 has already been set aside and
another civil suit for declaration of title is also pending, but learned executing
Court is executing the decree of eviction as well as for arrears of rent, therefore,
an application under Order 21 Rule 29 CPC was filed for stay of the execution.
Learned counsel further submits that without taking into consideration the
aforesaid factual position, learned executing Court has passed the impugned
order dismissing the application under Order 21 Rule 29 CPC.
3. Heard learned counsel for the petitioner and perused the record.
4. Impugned order dated 07.08.2023 shows that the application under Order
21 Rule 29 CPC has been dismissed on the ground that no document has been
produced in respect of filing of second civil suit. Although, the counsel
appearing for the petitioner by inviting attention of this Court to the copy of
plaint dated 02.07.2015 (Annexure P/8) submits that a copy of plaint was filed
before the executing Court, but prima facie this civil suit appears to have been
filed by respondent/decree holder himself and learned counsel for the petitioner
has not been able to demonstrate that any civil suit has been filed by the
petitioner/judgment debtor. As such in the aforesaid circumstances, in my
considered opinion, the provisions of Order 21 Rule 29 CPC cannot be
pressed into service and the application was not maintainable.
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 10/7/2023
10:13:18 AM
5 . In the case of Shaukat Hussain alias Ali Akram and Others vs. Smt.
Bhuneshwari Devi (Dead) by LR's (1972) 2 SCC 731, the Supreme Court has
held as under:-
"6. Order 21 CPC. 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 four 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 a 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
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 10/7/2023
10:13:18 AM
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."
6. However, in the light of order dated 29.02.2020 passed in CR
No.302/2017, petitioner is free to file appropriate application before the
executing Court regarding maintainability of the execution proceedings.
7. As such, declining interference in the impugned order and with the
aforesaid observation, this misc. petition fails and is hereby dismissed.
8. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
AT
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 10/7/2023
10:13:18 AM
