Kantrao Uttamrao Joshi vs Vijay Sadashiv Joshi

ORAL JUDGMENT :-

. Not on board. This matter was mentioned by the learned advocate for the respondent in the morning session citing urgency, with a request to take up in the Second session. Considering request, the matter is taken on board. Petitioner is represented by their learned advocate who showed his readiness to work out the petition.

Core issue: ‘Whether if a party not being a Judgment-Debtor in ‘X’ suit, can seek stay to the execution of decree passed in the ‘X’ suit, invoking Order 21 Rule 29 of the Code of Civil Procedure in ‘Y’ suit instituted against the decree holder of ‘X’ suit.’

2. Rule. Rule made returnable forthwith. By the consent of the parties, the petition is heard for final disposal.

3. The petitioner has lodged this petition with following substantive prayers:

1. Application is allowed.

Execution of decree passed in RCS No.355/2007 is stayed till final decision of RCS No.334/2023

Applicant is directed to proceed with RCS No.334/2023 expeditiously.

Applicant is directed to furnish undertaking that in the event of failure to satisfy his claim in RCS No.334/2023 he will compensate defendants for loss caused to them due to stay of execution petition.

This application shall form part of RCS 334/2023.

This necessitates reference to the provisions of Order 21 Rule 29 of the Civil Procedure Code. Rule 29 of Order 21 of the Code of Civil Procedure is reproduced as follows:

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

Thus, it is abundantly clear that the stay could not be granted to a decree at the behest of any party otherthan the one against whom the decree was passed. Meaning thereby, the provisions under Order 21 Rule 29 could be invoked only by the judgment debtor to the decree.

To be more specific, it is not in dispute that the Respondent No.1 is not a judgment debtor in the Decree passed in Regular Civil Suit No.355 of 2007. If so, in the later suit filed by respondent No.1, he has no right to seek stay to the execution of decree passed in the said suit of 2007.

Rule 29 of the Order 21, Code of Civil Procedure can not be read in isolation. Order 21 lays down a comprehensive and a model mechanism for execution of the decree passed in the civil suits.

If the the Order 21 Rule 29 of the Code of Civil Procedure is read litera legis, it is abundantly clear that it provides remedy only to a Judgment-Debtor of a suit, to settle or adjust a claim filed in another suit proceedings filed by him/her against the Decree holder. The provision is to stay the execution of the decree in former suit between the same parties, with an object to avoid further multiplicity of litigation which may arise if the later suit decrees in favor of the earlier Judgment Debtor – and if execution of the later decree is placed into service.

A beneficial reference could be made to a judgment rendered by Orissa High Court in the matter of case Paramananda Panda v. Krushna Chandra Panda and Others reported at AIR 1990 Orissa 188. For the sake of convenience, text of paragraph no.4 are reproduced as follows:

The next question which Mr. Misra for the plaintiff-petitioner urges is that it is true that O. 21, R. 29, Civil P.C. is an extraordinary power and, therefore, unless an extraordinary case is made out, the execution case filed under another decree should not be stayed, but according to him the present case is one of those extraordinary cases where the further proceedings in the execution case should have been stayed by the court below. In order to appreciate the correctness of the aforesaid submission, it would be appropriate to examine the provisions contained in O. 21, R. 29, Civil P.C. The said rule is extracted hereinbelow in extenso:— “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.”

The aforesaid provision makes it explicitly clear that an execution case can be stayed to enable the judgment-debtor and the decree-holder to adjust their claims against each other and to prevent multiplicity of execution proceedings. Therefore, a suit by the judgment-debtor against the decree-holder must be pending in order that R. 29 can be made applicable. Admittedly, the plaintiff is not a judgment-debtor as he was not a party to the previous suit. Therefore, in terms, R. 29 of O.21 cannot be said to be applicable to the present case. On this short ground that plaintiff's prayer can be rejected. When the aforesaid position was confronted, Mr. Misra appearing for the plaintiff-petitioner also, conceded that R. 29 in terms might not be applicable since the plaintiff was not the judgment-debtor in the earlier suit the decree of which was being executed.

Conclusion

In view of the aforesaid discussion I hold that,

Order 21 Rule 29 of Code of Civil Procedure could be invoked only by a Judgment Debtor against the Decree holder, in an another suit filed by the Judgment-Debtor against the Decree-holder.

By no stretch of imagination the Respondent No. 1 can be termed as a ‘Judgment-Debtor’ of the Suit of 2007.

The application filed by the Respondent No.1 is wholly misconceived. While Order 21 Rule 29 of the Code of Civil Procedure makes a clear and cautious provision for stay of an execution of a decree only in specific circumstances, such application could not have been entertained even invoking Section 151 of Code of Civil Procedure.

For the reasons recorded above, I hold that the Learned 3^rd Jt. Civil Judge, Junior Division, Vaijapur mistakenly placed Order 21 Rule 29 of Civil Procedure Code into service to allow the application. Resultantly, I find that the petitioner has made out a successful case for interference of this Court. Writ Petition must succeed. Hence, I pass the following order:

ORDER

a. Writ Petition stands allowed. b. Impugned order dated 20.07.2024, passed by learned 3^rd Joint Civil Judge Junior Division, Vaijapur in Civil Miscellaneous Application No.153 of 2024 is quashed and set aside. c. Rule made absolute in above terms. d. Civil Application if any, stands disposed of.

( AJIT B. KADETHANKAR, J. )