SREEKUMARY Vs. THANKAPPAN PILLAI

JUDGEMENT

(1.) An application to stay the execution proceedings under Order XXI Rule 29 C.P.C. was dismissed by the execution court under Ext.P3 order, against which, the judgment-debtor came up by relying on the legal position rendered by this Court in Arun Pavalin v. Rajan Achary (1998 (2) KLT 670) and Abdul Samad v. Nahakhan (2020 KHC 688 : 2021 (2) KLT 533).

(2.) The power to stay execution under this Rule is purely discretionary and the discretion can be exercised by striking a balance not to defeat the execution proceedings and to avoid miscarriage of justice on a defective decree. Hence, utmost bonafides for the second suit alone would entitle the party to avail the benefit of stay of the execution of earlier decree. Rule 29 of Order XXI C.P.C. is in fact precautionary in nature so as to avoid miscarriage and failure of justice based on a defective decree. When there is no question of miscarriage or failure of justice on account of any defect in the decree by virtue of any incompetency or lack of jurisdiction or any other sufficient ground, the matter would not come under the purview of Order XXI Rule 29 C.P.C. Utmost care and caution is required while granting an order of stay under Rule 29 of Order XXI C.P.C. and it cannot be granted in a routine way simply on satisfying the two limbs of Rule 29 of Order XXI C.P.C., that is, (1) A proceeding in execution of 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. These are the two requirements in order to attract the application of Order XXI Rule 29 C.P.C. as laid down by the Apex Court in Shaukat Hussain alia Ali Akram and Others v. Smt. Bhuneshwari Devi (dead) by Lrs. and Others [(1972) 2 SCC 731]. A pendente lite transferee who would stand bound by the decree sought to be executed by virtue of Sec. 52 of the Transfer of Property Act can also step into the shoes of judgment-debtor as a person litigating under him. But to exercise the jurisdiction under that Rule by granting stay of execution, the court must be satisfied of the bonafides for the second suit and existence of a debatable prima facie case which would affect or take away the very decree which is sought to be executed against the judgment-debtor. The material point to be looked into is that the second suit must be by the judgment-debtor or any person claiming under him against the earlier decree sought to be executed. That mandate itself carries the danger of being entangled in repeated litigation and multiplicity of proceedings even after the culmination of earlier suit in a decree. Necessarily, the purpose under Rule 29 of Order XXI C.P.C. is not to permit a second suit and multiplicity of proceedings and to give an end to the principle of finality and conclusiveness. Stay of execution under Rule 29 of Order XXI C.P.C. can be granted only on satisfying any material defect or want of jurisdiction which would sufficiently take away the decree sought to be executed as against the judgment-debtor or any person claiming under him, who came up with a second suit for that purpose. Necessarily, there should be ground to take away the impact of the principle of res judicata as embodied under Sec. 11 C.P.C., otherwise, the decree would stand binding on the judgment-debtor and the person claiming under him and they will stand precluded from bringing up another suit, a second suit. The principle test to be applied is resting on the question of bonafides for a second suit in view of the bar under Sec. 11 C.P.C. and its exclusion in maintaining it. Hence, the stay of execution under Rule 29 of Order XXI C.P.C. cannot be granted on a mere asking unless the abovesaid test was applied so as to find out the bonafides and existence of a debatable case in the second suit and the non-applicaton of res judicata as embodied under Sec. 11 C.P.C..

(3.) The Apex Court in Shaukat's case (Supra)had laid down that the word "such court" occurred in the provision stands for the court, which passed the decree and put in execution and not the other courts and concluded that unless the decree sought to be executed is the one passed by that court, no jurisdiction under Order XXI Rule 29 C.P.C. can be exercised to stay the execution of a decree. The legal position is further made clear by this Court in Arun Pavalin's (supra) that a stay application under Rule 29 of Order XXI C.P.C. cannot be rejected on the sole ground that he is a pendente lite purchaser. What is relevant so as to exercise the jurisdiction as discussed earlier is the existence of prima facie debatable case in exclusion of application of Sec. 11 C.P.C. The question came up for consideration in Abdul Samad's case (supra) is pertaining to the application of the said rule to an execution of an interlocutory order and it is standing on a different pedestal.