KRISHNAN NAMBOODIRI Vs. A P UNNIKRISHNAN NAMBOODIRI

JUDGEMENT

(1.) The petitioners in E.A.332of 1997 in E.P.250 of 1981 in O.S. 853 of 1968 on the file of the Munsiffs Court, Kozhikode II, are the petitioners. The .father of the respondent Damodaran Namboodiri filed a suit, O.S.853of 1968, before the Munsiff's Court, Kozhikode against the petitioners and others. The case was that the plaint schedule property which was acquired by the first petitioner was only a benami for Damodaran Namboodiri and the possession was with Damodaran Namboodiri and a declaration was sought that the aforesaid document was a sham one. An injunction was also sought restraining the defendants in that suit from entering into the plaint schedule property. The suit was decreed. Then E.P. 250 of 1981 was filed alleging that the petitioners have violated the order of decree and to take suitable action against them. It was found that the petitioners have violated the decree and ordered to send them to civil prison for fifteen days. This order passed by the Munsiff has been confirmed by this Court.

(2.) The petitioners have filed O.S. 803 of 1997 before the Munsiff's Court, Kozhikode for a declaration that the judgment and decree in O.S. 853 of 1968 was a collusive one and for setting aside the decree as not valid and binding on the plaintiffs. They filed E. A. 332 of 1997 in the Execution Petition for staying the execution of the decree in O.S.853 of 1968 till the disposal of O.S. 803 of 1997. That petition was filed under O.21 R.29 CPC. The respondent objected to the petition and the Court below, by the impugned order, dismissed the application. The Court below has referred to the earlier order passed in execution holding that the petitioners have violated the decree of injunction. It then said that the present suit was filed to defeat the order passed. It then referred to the fact that the earlier decree was confirmed in 1976. In that view of the matter, the application was dismissed. It is against that the present C.R.P. is filed.

(3.) Learned counsel for the petitioners submitted that O.21 R.29 CPC gives power to the Executing Court to stay the execution of a decree if the judgment debtor has tiled another suit and it is pending before the same court. According to the petitioners, it was the duly of the Executing Court to look into the facts and grant stay. The counsel contended that the incorporation of R.29 enables a judgment debtor to get a slay of ok execution. Hence, the lower Court should not have dismissed the application on the mere ground that a decree has been obtained by the respondent. He contained that the Court below has not given any reasons for rejecting the application.