GLORPHIS JAMES Vs. DENA BANK

JUDGEMENT

(1.) Dena Bank, East Fort, Trivandrum, filed two suits against the petitioner Glorphis James. In suit No.77 of 1985 which was for recovery of Rs.4,44,984.50 a decree for recovery of part of the amount was passed against which an appeal is pending. In Suit No.152 of 1985 the court passed decree on 25-6-1986 against the petitioner for recovery of Rs.1,13,765.81. The decrees in these suits were made by the IInd Addl. Subordinate Judge, Trivandrum. An application for execution of the decree in O.S. 152 of 1985 is pending in the court of IInd Addl. Subordinate Judge, Trivandrum. Thus the petitioner herein is the judgment debtor and the respondent Dena Bank is the judgment creditor, in respect of the decree in O.S. 152 of 1985.

(2.) Admittedly the suit in forma pauperis is "against the holder of a decree" in O.S. 152 of 1985. Dena Bank is the holder of a decree of "such court" meaning thereby the court in which the suit is pending viz. the subordinate court, Trivandrum. The suit subsequently instituted and registered as O.P. (Paup) No. 235 of 1987 by the judgment debtor in O.S. 152 of 1985 is against the "holder of a decree of such court." The subsequently instituted suit O.P. (Paup) No.235 of 1987 in which an order of stay is sought is pending in the same court which made the decree sought to be executed. The question is whether, on these facts, the application for stay - I.A.No.3306 of 1987 was properly instituted.

(3.) Counsel for the petitioner urged that since the decree whose execution" is sought to be stayed was made by the same court in which the suit is pending, the case clearly falls within R.29 of O.21 of the Code of Civil Procedure. The learned Judge has held that such an application should have been filed in execution meaning thereby that the stay under O.21 R.29 can be granted only by the court which is seized of the execution petition. R.29 of O.21 of the Code has these ingredients: (a) the suit must be pending in any court, (b) the suit must be against the holder of a decree, (c) the decree must have been made by the court before whom the suit is pending. There is no reference to the status of the court as the court "trying" the suit and the court "executing the decree". The language of R.29 of O.21 of the Code admits of no such distinction. It is therefore immaterial whether the application for stay is made on the execution side or on the original side (M/s. Khemchand Rajmal v. Rambabu Johrimal, AIR 1958 M.P. 131). All that need be proved is the identity of the court which passed the decree and the court in which the suit is pending. Again it is immaterial as to whether the two proceedings are pending before different judges of the same court. Suppose the suit is filed before IInd Addl. Sub Judge, Trivandrum, and the execution is pending before the Ist Addl. Sub Judge, Trivandrum. Even in such cases the two judges being judges of the same court both the proceedings must be held to be pending in the same court (Narsidas Nathubhai Vohra v. Manharsingh Agarsing Thakor, AIR 1931 Bom. 247; M/s. Khemchand Rajmal v. Rambabu Johrimal, AIR 1958 MP 131; Raghvender Rao v. Botlagunta Laxminarasayya, AIR 1962 Mys. 89).