ANTONY FREDERIC BAIJU Vs. TITUS SHYJU

JUDGEMENT

(1.) Petitioner is the judgment debtor in E.P.No.27/2021 arising from the judgment and decree in O.S. No.465/2015 of the Principal Munsiff's Court, Kochi. He is aggrieved by Exts.P11, P14 and P16 orders of the learned Munsiff. Ext.P11 order allowed an application preferred by the decree holder to depute an Amin to break open the lock, so as to handover the possession of the subject shop room to the respondent/decree holder. Against Ext.P11 order, a review petition was preferred vide Ext.P12. However, the same was dismissed vide Ext.P14. Simultaneous with the review petition, an application for stay of execution of the decree was also preferred, which was dismissed vide Ext.P16.

(2.) Heard the learned counsel for the petitioner/ judgment debtor and the respondent/decree holder.

(3.) Learned counsel for the petitioner submits that the suit which was decreed, O.S.No.465/2015, was preceded by another suit, O.S.No.133/2015, the plaint of which is produced as Ext.P7. It was also pointed out that an order of injunction in recognition of the rights of the petitioner herein was passed, vide Ext.P8. The suit, which was decreed and which is sought to be executed, was filed subsequently. In the fitness of things, an application under Sec. 10 of the Code of Civil Procedure ought to have been filed, which was not done, with the result, the subsequent suit, O.S.No.465/2015 was decreed, allowing fixation of boundary and directing eviction of the petitioner from the scheduled shop room. Learned counsel submitted that, going by the provisions of Order XXI, Rule 29 of the Code of Civil Procedure, the execution court was obligated to stay the execution proceedings until a decision is rendered in the suit, O.S.No.133/2015. The requirements in Order XXI, Rule 29 are satisfied, the impact of which is not considered in Exts.P11, P14 and P16 orders. Learned counsel relied upon a three Judges Bench decision of the Hon'ble Supreme Court in Shaukat Hussain @ Ali Akram v. Smt.Bhuneshwari Devi (dead) by Lrs & Ors. [(1972) 2 SCC 731] in support of his arguments.