Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 3989 of 2012 Pradip Mallick Son of Late Uma Shankar Mallick, resident of Andul Dakshin Para, PS- Sankrail, District- Howrah(West Bengal) at present residing at Makatpur, PS- Giridih (Town), PO & District- Giridih …. Petitioner --Versus-- 1. Deb Kumar Banerjee 2. Ashok Kumar Banerjee, Both sons of Late Baidyanath Banerjee, resident of Makatpur, PS- Giridih(T), PO & District- Giridih 3. Bhagwan Lal Burnwal, son of Late Sangat Lal Burnwal 4. Ram Chandra Lal Burnwal, son of Late Sangat Lal Burnwal 5. Smt. Urmila Devi, wife of Raj Kumar Burnwal All residents of Mohalla- Makatpur, Kutchery Road, PS- Giridih(T), PO & and District- Giridih …. Respondents CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA For the petitioner :- Mr. Bibhash Sinha, Advocate For the Respondents :- M/s. S.K.Ughal, S.K.Samanta, Rama Kant Tiwari, Shailendra Kumar Singh & Debarsi Mondal, Advocates Date: The 16th August, 2016 By court: Invoking the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India, one of the decree- holder has moved this Court against the order dated 05.04.2012 passed by Civil Judge (Jr. Division) (Munsif), Giridih in Execution Case no. 01 of 2001 whereby and whereunder a petition filed by one of the decree-holder- petitioner under Order XXI Rule 29 read with Section 151 of the Code of Civil Procedure (in short “the Code”), has been rejected.
2. The relevant facts leading to the filing of this writ application, in short, is that mother of the petitioner and the present respondent nos. 1 and 2 being co-sharer had filed the Eviction Suit no. 52 of 1990 against the present respondent nos. 3 to 5 but the same was dismissed vide judgment and decree dated 24.05.1999. Thereafter, they preferred an Eviction Appeal baring no. 02 of 1999 before the District Judge, Giridih and the same was allowed by judgment and decree dated 24th May, 1999 and judgment of the court 2 of Munsif was set aside. Being aggrieved by the said appellate court’s judgment, the present respondent nos. 3 to 5 preferred a Second Appeal before this Court and after dismissal of the same, S.L.P. (Civil) bearing no. 20286 of 2004 was filed before the Hon’ble Supreme Court, which was also dismissed vide order dated 25.04.2008. Thereafter, the Execution Case no. 01 of 2001 was filed in the court of 2nd Additional Munsif, Giridih by the mother of the petitioner and respondent nos. 1 and 2 against the present respondent nos. 3 to 5. It is pertinent to mention here that the mother of the petitioner during her life time apprehending that the other decree holders, who are her brothers, are trying to grab the joint property had filed a Partition Suit bearing no. 61 of 2009 in the court of Sub-Judge, Giridih for partition of her share but as she died during pendency of the cases, this petitioner and his two sisters were substituted in execution case as well as in Partition Suit and thereafter this petitioner filed an application under Order XXI Rule 29 read with Section 151 of the Code in the Execution Case no. 01 of 2001 with prayer to stay the further proceeding of the execution case in view of the pendency of the Partition Suit no. 61 of 2009 and subsequently another petition was also filed on 04.05.2012 by the petitioner praying therein to keep the execution case in abeyance till the disposal of the partition suit but the court below after hearing both the parties rejected his prayer for stay as indicated above. Hence, this writ.
3. Mr. Sinha learned counsel appearing for the petitioner assailing the order impugned as bad in law seriously contended that the court below erred in rejecting the petition filed by the petitioner for stay of the execution case without appreciating that as there was every apprehension of disposal of the property in dispute by other decree-holders. It was also submitted that the power under Rule 29 of Order XXI of the Code is discretionary and the Court has to exercise such power judiciously and in the interest of justice but the court 3 below erred in not considering that a party, who has obtained the lawful decree, should not be deprived of the fruits of the decree.
4. Per contra, the learned counsel appearing for respondent no. 1 and 2 seriously contended that the petitioner, who is also one of the decree holder, in collusion with the present respondent nos. 3 to 5 are trying to stall the proceeding of execution case, which is pending since 2001 in the garb of partition suit. It was also contended that the dispute went up to the Apex Court and now the only intention is to deprive the decree-holders of the fruits of the decree.
5. A reference of Order XXI Rule 29 of the Code is necessary for the proper adjudication of the question involved in this writ application, which reads as follows:- “Order XXI Rule 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.”
6. From bare perusal of the aforesaid provision, it would appear that the court, which is empowered to exercise the power under Order XXI Rule 29 of the Code, is the court where both, the suits and execution proceedings are pending and no other court can entertain the application filed under the aforesaid provision. Apparently, the execution case is pending in the court of Civil Judge (Jr. Division) (Munsif), Giridih while the Partition Suit is pending in the Court Civil Judge (Sr. Division) (Sub-Judge), Giridih. Secondly, the aforesaid provision vests discretion in the court to grant stay but the stay cannot be granted as a matter of right. In the case Krishna Singh Vs. Mathura Ahir and others; AIR1982Supreme Court. 686, the Hon’ble Supreme Court held that the jurisdiction has to be exercised with a very great care and only in special cases. Surprisingly in the instant case, one of the decree-holder has filed the petition for stay of 4 the execution case though the other two decree-holders are not party to the said petition. The other decree-holders in their objection filed against the said petition in the court below have taken a plea that all the decree-holders had applied for the execution of whole the decree. Though the mother of the petitioner had filed a Partition Suit to get her share in the properties partitioned apprehending disposal of the suit property by other decree-holders but there is absolutely nothing on the record to show in support of that apprehension and the only intention of the petitioner appears to stall the whole execution case, which is pending since 2001.
7. I have gone through the order impugned and the petition filed by the petitioner in the court below and I find that the court below having considered the matter and having taken note of the fact that the matter went up to the Hon’ble Supreme Court and, thereafter, the execution case was filed by all the decree-holders, rightly rejected the prayer of the petitioner. Learned counsel appearing for the petitioner has not pointed out any cogent ground to interfere in the order impugned.
8. In view of the discussions made above, this writ application, being devoid of any merit, is, hereby, dismissed. (R.N. Verma, J.) Ritesh/N.A.F.R.