Judgment:
ORDER
P.C. Misra, J.
1. Notice in the matter of admission was issued to the opposite parties. Pursuant to the said notice, the opposite parties entered appearance. During the course of hearing at the stage of admission, learned counsel for both parties requested for disposal of the revision at that stage for which the matter was heard at length.
2. The judgment-debtor in Execution Case No. 6/87 pending in the court of Additional Munsif, Jajpur Road is the petitioner in this revision. The petitioner Judgment debtor filed an application for stay of the execution case under Order 21, Rule 29, CP.C read with Sections 10 and 151, CP.C., which having been rejected by the learned Munsif he has come up with this revision challenging the legality of the said order.
3. The facts relevant for the purposes of this revision may be briefly stated as follows: Admittedly the present petitioner was a tenant under the decree holder opposite parties and the latter filed Title Suit No. 82/83 in the court of Munsif, Jajpur praying for eviction of the present petitioner. In the said suit the petitioner entered appearance and filed his written statement alleging that there was an agreement for sale in his favour executed by the present opposite party 1 as the Karta of the family for sale of the disputed house for a consideration stipulated therein and on account of the said agreement, the relationship of a landlord and tenant has ceased for which reason he is not evictable. Ultimately, the said suit was decreed ex parte and an ex parte decree was passed on 13-9-86 by the Additional Munsif, Jaipur Road to which court the case had in the meantime been transferred. The present execution case has been started by the decree-holders to execute the said decree for eviction. The petitioner has instituted Title Suit No. 48/86 in the court of Sub-Judge, Jaipur praying for specific performance of the contract for sale which is pending. He filed an application for stay of the execution case in the executing court under the provisions of Order 21, Rule 29 CP.C. read with Sections 10 and 151, CP.C. on the ground that by virtue of the agreement for sale he is entitled to continue to possess the suit house and he shall suffer irreparable bass and injury if he is dispossessed in the execution case pending final disposal of the said suit for specific performance of the contract. The decree-holder opposite parties filed objection against the stay petition that the application under Order 21, Rule 29, CP.C. is misconceived as the said provision is not available to be applied where the suit and execution case are not pending in the same court. They further contended that there is no legal or factual justification to stay the execution proceeding thereby depriving the decree-holders to reap the fruits of the decree which they have obtained from a competent court of law.
4. The learned Addl. Munsif after considering the contentions placed before him by the parties, came to hold that Order 21, Rule 29 is not available to be applied as the suit is pending in a different court. The learned court also held that Section 10, C.P.C. is inapplicable unless both the litigations are suits and the other conditions of the Section are satisfied. While considering the question as to whether stay can be granted under Section 151, CP.C, the learned Court came to a conclusion that there is no irreparable loss and injury to the present petitioner as he can be restituted with the property in the event he succeeds in the pending suit The learned counsel appearing for the petitioner has contended that the Addl. Munsif has either failed to exercise his jurisdiction or exercised his jurisdiction illegally and with material irregularity in recording the aforesaid findings.
5. Rule 29 of Order 21 of the Civil P. C. is quoted below for ready reference.
'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 plain language of the rule requires that there should be two simultaneous proceedings pending in a court, namely; (1) the execution proceeding to execute the decree of that court started at the instance of the decree-holder against the judgment-debtor; and (2) a suit at the instance of the same judgment-debtor against the holder of the decree of that court By virtue of the amendment of the law in the year 1976 (Act 104 of 1976) which came into effect from 1-2-77 the expression 'such Court' would also include a Court which is executing a decree though not passed by it In the present case the suit is pending in the court of Subordinate Judge, Jajpur whereas the Addl. Munsif, Jajpur Road is executing the decree passed by it is, therefore, does not satisfy the requirements of Order 21, Rule 29, C.P.C. for giving jurisdiction to the court to stay the execution under Order 21, Rule 29, C.P.C I, therefore, refrain from discussing the principles whether stay can be granted or refused under Order 21, Rule 29, CP.C. touching which both parties have cited some earlier decisions of this Court.
6. The question of applicability of Section 10 of the Civil P. C. does not arise for consideration at all. It was rightly conceded by the learned counsel appearing for the petitioner that the said provision contemplates the pendency of two suits between the same parties covering the same field in which event the latter suit may be stayed. None of the preconditions for applicability of Section 10 is present in this case. The only provision under which the Court could exercise jurisdiction for stay of the execution proceeding is Section 151, C.P.C. as it is well established in law that the Court can exercise its inherent power in the ends of justice or to prevent abuse of the process of law, only in the absence of any specific provision in the Code to meet the situation.
7. Even while exercising jurisdiction under Section 151, C P. C. in such cases, the court has to keep in mind that a decree-holder who has obtained a decree should not be deprived of the suits thereof except for good reasons. The learned trial court while weighing the case of the parties has observed that the petitioner shall not suffer irreparable injury if he in dispossessed from the disputed property in the execution proceeding during the pendency of his suit, as he can always be restituted with the possession in the event he succeeds in obtaining a decree of specific performance, of, the contract He has also held that the balance of convenience is in favour of the decree holders who have already obtained a decree for eviction of the judgment-debtor from a competent court of law. Learned counsel appearing for the petitioner has vehemently urged that scope for being restituted with possession in future may not always be enough for a conclusion that the party being dispossessed would not suffer from irreparable loss. The learned counsel for the petitioner further argued that by virtue of the agreement executed in favour of the petitioner for sale of the disputed property, the character of his possession has changed to be that of a person having an interest in the property and the decree for eviction which was passed ex parte without considering the merits of his defence in the suit cannot be enforced pending his suit for specific performance of contract In order to substantiate his argument he produced the certified copy of his plaint in T.S. No. 48/86 praying for specific performance of contract and a xerox copy of the agreement which is sought to be enforced in the said suit The genuineness of the contents of these two documents was not disputed by the learned counsel appearing for the opposite parties. On a perusal of the agreement on the basis of which the plaintiff has filed the said suit I find that there is no recital therein to the effect that the petitioner's possession of the house was to be treated as that of an owner or a prospective transferee with effect from the date of agreement In the plaint in T. S. No. 48/86 the plaintiff has not alleged that character of his possession has changed from that of a tenant by virtue of the said agreement. Law is well settled that an agreement to sell does not create any interest in respect of the property sought to be transferred in favour of the proposed transferee except a right to enforce the contract. Thus in spite of the agreement for sale, in question, the petitioner continued to be a tenant in respect of the house until the tenancy is terminated, by any of the processes known to law. In the earlier suit the question as to whether the petitioner should be allowed to continue in possession or is liable to be evicted was directly in issue. The Court while disposing of the suit passed a decree for eviction and the said decree has been put to execution. Thus the petitioner has not been able to establish a prima facie case as to his entitlement to continue in possession of the house in question. That the said decree was passed ex parte is not a consideration relevant for the present purpose as an ex parte decree is as effective as a contested one, if not set aside in due process of law. In the aforesaid premises, I do not find any reason for stay of the execution case pending the final disposal of the suit which the petitioner has initiated for specific enforcement of the alleged contract in his favour.
8. In the result, the revision has no merits and is accordingly dismissed There shall be no order or to costs.