Kamalakshi Amma vs Chitta Aleya

Pius C. Kuriakose, J.—The 9th judgment-debtor who along with judgment debtors 4 to 8, 10 and 12 filed an application under Order XXI, Rule 29, CPC for stay of the execution proceedings is aggrieved by the order passed by the executing court and has come up in revision. That Court has very correctly distinguished the decision of this Court in Arul Pavalin v. Bajan Achary, 1998 (2) KLT 670 on facts and rightly held that the said decision is not applicable to the case on hand. Before me also Sri. C.V. Vasudevan, learned counsel for the revision petitioner did not harp very much on that decision. The learned counsel only tried to highlight the so-called independent right which had been projected before the Court below by the revision petitioner-9th judgment-debtor.

The provisions of Order XXI, Rule 29, it should be remembered, are only directory and unless the court is convinced that the petitioners have a reasonably strong case for enquiry in the new suit on the basis of which stay is sought for, the executing court will be justified in declining to grant stay. It cannot be said that the revision petitioner is having a reasonably strong case for trial in O.S. 487 of 2002, a suit filed two decades after the suit which is the subject-matter of the present proceedings. The delay caused in the matter of instituting the fresh suit as well as in the matter of applying for stay under Order XXI, Rule 29 are also considerations which should weigh with the executing court while exercising, its discretion under Order XXI, Rule 29. I am of the view that the discretion has been correctly exercised by the court below in this case. As for the building the delivery of which Sri. C.V. Vasudevan wants me to stay, it is to be noted that the building was obviously put up on the decree-schedule property subsequent to the passage of the decree.

I do not find any jurisdictional infirmity about the impugned order. Thus C.R.P. is dismissed.