P SHANMUGHAM Vs. K MANICKAM

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the order dismissing an application filed by the petitioner under Order 21, rule, 29, Code of Civil Procedure, praying for a stay of operation of the decree in O. S. No. 323 of 1970, District Munsif's Court, Periyakulam and all farther execution proceedings therein till the final disposal of O. S No. 85 of 1978, District Munsif's Court, Periyakulam. The property in question is an extent of 1 acre and 89 cents in survey No 2281, Thamaraikulam Village, Periyakulam taluk, Madurai District. One M. C. Gurusamy Reddiar founded in Krishnapuram village a Vinayakar Temple called "Nalam Tharum Vinayakar Temple" and dedicated the property referred to earlier to the temple under the terms of a deed of settlement dated 14th June, 1945. He was also functioning as the trustee of the temple. On 20th March, 1968, by a document styled as a deed of transfer of trust, M. G. Gurusamy Reddiar purported to transfer the office of the trustee to one M. A. Krishnasamy Reddiar, the father of the respondent herein. The father of the petitioner having purchased the property referred to above, set up his title as against the Vinyakar temple which led to the institution of a suit in O. S. No. 323 of 1970, District Munsif's Court, Periyakulam, for recovery of possession of the property, by M. A. Krishnasamy Reddiar. During the pendency of that suit, M. A. Krishnasamy Reddiar died and the respondent herein got another document dated 9th December, 1970 from M. G. Gurusamy Reddiar transferring the trusteeship and prosecuted the suit institued by his father M. A. Krisnasamy Reddiar. On 22nd July, 1971, the suit was dismissed and on appeal by the respondent herein in A. S. No. 205 of 1971, Sub-Court, Dindigul, a decree for recovery of possession of the property was granted in favour of the respondent herein. The father of the petitioner who figured as the defendant in the suit perferred a Second Appeal in S. A. No. 2334 of 1974 to this Court and during the pendency of that appeal he died and his legal representatives including the petitioner herein were brought on record and on 6th August, 1975 the second appeal was dismissed confirming the decree of the lower Appellate Court. As against that, the petitioner and others preferred an appplication for Special Leave to the Supreme Court of India in Special Leave Petition (Civil) No. 718 of 1976 and that was also dismissed on 12th January, 1978. It is the decree in O. S. No. 323 of 1970 as confirmed by this Court as well as the Supreme Court that is about to be executed by the respondent. Meanwhile, after the dismissal of the Special Leave Petition by the Supreme Court on 12th January, 1978 the petitioner and his brother purported to obtain a document styled as trust devolution deed in their favour from the original founder M. G. Gurusamy Reddiar and his son G. Mani under which the petitioner and his brother claimed to have become trustees and that, therefore, they are entitled to be in possession of the property of the temple as trustees. The petitioner and his brother further claimed that M. G. Gurusamy Reddiar and his son G. Mani are competent to execute the trust devolution deed with a view to provide for the succession of trustees for the administration of the temple. Thus claiming that they have become trustees, the petitioner and his brother instituted O. S. No. 85 of 1978, District Munsif's Court, Periyakulam against the respondent herein and M. G. Gurusamy Reddiar and his son G. Mani impleading them as defendants 1 to 3. In the course of the plaint in that suit, the petitioner and his brother have alleged that the document executed by M, G. Gurusamy Reddiar on 20th March, 1968 in favour of M.A. Krishnasamy Reddiar and the document dated 9th December, 1970, purporting to be a transfer of trusteeship by M, G. Gurusamy Reddiar in favour of the respondent herein are documents which are invalid and, therefore, the temple was not properly represented in the prior suit O. S. No. 323 of 1970, District Munsif's Court, Periyakulam, and the proceedings will not bind it. On the strength of the trust devolution deed stated to have been executed by M. G. Gurusamy Reddiar and his son G. Mani on 31st January, 1978, the petitioner and his brother claimed that the founder and his son having the competency to chalk out a line of succession to the office of the trusteeship of the temple, appointed the petitioner and his brother as trustees and, therefore, they are entitled to the possession of the property of the temple as trustees. It was also the plea of the petitioner and his brother that the respondent herein cannot continue to represent the temple any longer and, is therefore, disentitled from recovering possession of the property pursuant to the decree in O. S. No. 323 of 1970. Under these circumstances, in O. S. No. 85 of 1978, District Munsif's Court. Periyakulam the petitioner and his brother prayed for a declaration that they are validly constituted trustees and also for a permanent injunction restraining the respondent herein from executing the decree in O. S. No. 323 of 1970, District Munsif's Court, Periyakulam and taking all proceedings in execution thereof and other incidental reliefs. Pending disposal of that suit, the petitioner and his brother also applied in I. A, No. 215 of 1978 in O. S. No. 85 of 1978 for a temporary injunction restraining the respondent herein from executing the decree in O. S. No 323 of 1970, till the disposal of that application as well as the suit. That application was resisted by the respondent . herein on several grounds which need not be noticed in extenso for the purposes of the present controversy between the parties. Suffice it to mention that the learned District Munsif of Periyakulam by an order dated 1st March, 1979 held that merely because the petitioner and his brother claim the right to be the trustees, it does not mean that they have established prima facie right to be in possession of the property of the temple as trustees and the respondent cannot be prevented from enjoying the fruits of the decree obtained by him by fighting the litigation up to the Supreme Court. It was also further held that in the event of the petitioner and his brother succeeding in the suit and establishing that they are the legally constituted trustees of the temple, then it will be certainly open to them to get delivery of the property from the respondent including a claim for mesne profits. On the conclusions referred to above, the learned District Munsif, Periyakulam, dismissed the application for injunction filed by the petitioner and his brother and it is not in dispute that that order has become final. The petitioner, after setting out the institution of O. S. No. 85 of 1978, District Munsif's Court, Periyakulam, based on the terms of the trust devolution deed dated 31st January, 1978, sought in E. A. No. 502 of 1978 in O. S. No. 323 of 1970 an order of stay of the operation of the decree as well as the execution proceedings in O. S.No. 323of 1970 till the disposal of O. S. No. 85 of 1978. The main ground upon which thats relief was sought for by the petitioner is that the decree in O. S. No. 323 of 1970 is a nullity as it was passed on the basis of an invalid document of transfer of trusteeship and, therefore, an invalid decree cannot be put into execution by the respondent herein as trustee in the face of the trust devolution document dated 31st January, 1978. The petitioner, therefore, stated that in order to avoid unnecessary complications and also to prevent the respondent from executing a decree which he is not competent to execute, a stay of operation of the decree and the execution of the same should be granted till the disposal of O. S. No. 85 of 1978. That application was resisted by the respondent herein on the ground that the petitioner and his brother are only self-styled trustees and that the present petition was nothing except a belated attempt to attack the decree as well as the status of the respondent as a trustee of the temple. In addition, the respondent also stated that the petitioner was merely anxious to prolong the proceedings which would enable him to continue to remain in unlawful possession of the property of the temple and that no ground whatever has been made out for granting stay. The learned District Munsif, Periyakulam, held that having regard to the dismissal of the injunction petition filed by the petitioner in I. A. No. 215 of 1978, no ground had been made out by the petitioner to stay the execution proceedings by the respondent on the basis of a decree obtained by him. On this finding, the petition was dismissed. It is the correctness of this order that is challenged in this revision.

(2.) THE learned counsel for the petitioner contends that the petitioner has made out a case for granting stay under the provisions of Order 21, rule 29, Code of Civil Procedure, especially when the respondent has obtained a decree against the petitioner and a suit by the petitioner is also pending against the holder of the decree, namely, the respondent herein O. S. No. 85 of 1978, District Munsif's Court. Periyakulam. It is also the further contention of the petitioner that the respondent has no locus standi to maintain the application for execution in view of the circumstance that the petitioner and his brother have since been appointed as trustees by the founder and, therefore, execution proceedings at the instance of the respondent now would also be incompetent and should, therefore be stayed till the disposal of the suit O. S. No. 85 of 1978. On the other hand, the learned counsel for the respondent contends that though the conditions for invoking Order 21. rule 29, Code of Civil Procedure, may be present in this case, yet, it is not obligatory on the part of the Court to grant stay, but that is a matter for the discretion of the Court and having regard to the claim that had been made by the petitioner earlier that he was the owner of the property and the passing of the decree against him by the Courts inclusive of the Supreme Court, this is not a fit case for the exercise of discretion in favour of the petitioner. He would also contend that it is unnecessary to stay the proceedings at this stage, but in the event of the petitioner succeeding in establishing his claim as a trustee, he could certainly recover possession of the property from the respondent and, therefore, there is no need now to stay either the operation of the decree or the execution thereof. In this connection, it is necessary to consider the scope of Order 21, rule 29, Code of Civil Procedure, which runs thus: "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." Under this rule, therefore, if a suit by a judgment-debtor is pending in a Court against the holder of a decree of that Court, the execution of the decree may be stayed until the disposal of the suit. It is at once obvious that this rule is intended to enable the judgment-debtor and the decree-holder to adjust their claims against each other and also to avoid a multiplicity of execution proceedings. THE requisites before this rule can be invoked, as pointed out by the Supreme Court in Shaukat Hussain v. Bhuneshwari Devi 1are two simultaneous proceedings in one Court, namely: (1) a proceeding in execution of the decree, initiated by the decree-holder against the judgment-debtor and (2) the pendency of a suit at the instance of the judgment-debtor against the holder of the decree of that Court. In the present case, it is not in dispute that the respondent-decree-holder has initiated proceedings in execution of the decree in O. S. No. 323 of 1970, District Munsif's Court, Periyakulam, against the petitioner who is the judgment-debtor and the petitioner-judgment-debtor has instituted a suit in O. S. No. 85 of 1978 District Munsif's Court, Periyakulam, against the respondent-decree-holder in O. S. No. 323 of 1970, District Munsif's Court, Periyakulam. THE requirements of Order 21, rule 29, Code of Civil Procedure, are, therefore, prima facie satisfied. But yet, it must also be remembered that the rule is not an imperative one and the Court as a matter of exercise of its discretion can either grant the stay asked for or refuse the same. THE object of the rule as pointed out by Beasley, C. J. in Kannammal v. Muthukumaraswami,1 is that should a plaintiff in a pending suit succeed therein, then there can be an adjustment of the decree or claim by that plaintiff against the decree obtained against him in the other suit in the same Court without it being necessary for the successful plaintiff in the pending suit to take out execution proceedings. It is also further pointed out that in cases where it is likely that the decree-holder in the other suit may take steps which might deprive the plaintiff in the pending suit of the fruits of any decree which he obtains, an order staying the execution in the other suit should be made. However, the manner in which the Court would ordinarily exercise its discretion has also to be considered with reference to the nature of the suit pending and the claims agitated therein. In Judhistir, v. Surendra2 Misra, J., points out that no hard and fast rule can be laid down in what cases stay should be granted or refused. Dealing with matters which should be taken into consideration in the exercise of the discretion under Order 21, rule 29, Code of Civil Procedure, by a Court, Misra, J., points out at page 234 thus: "THE fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for good reason. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the decree might succeed. Such suits are also of a very precarious nature. THE allegations therein ordinarily would be that the previous decree was obtained by fraud or collusion or that the decree was not binding on the present plaintiff as the transaction entered into by the judgment-debtor was tainted with immorality. THEse are all suits of uncertain and speculative character. Most of these cases are likely to fail the onus being very heavy on the plaintiff to establish fraud and similar charges. That being the position, a person should not be deprived of the fruits of his decree merely because suits of frivolous character are instituted and litigants are out after further series of litigations. THE decree must be allowed to be executed, and unless an extraordinary case is made out, no stay should be granted. Even if stay is granted, it must be on suitable terms so that the earlier decree is not stifled. No hard and fast rule can be laid down in what cases stay would be granted or refused. But as has already been stated, a rigorous test is to be applied and in most of the cases prayer for stay is bound to be refused." To similar effect is the decision in Subhas Kumar v. Sheo Balak3.THE principles for the exercise of discretion under Order 21, rule 29, Code of Civil Procedure, have been laid down in Tolifiqur Rahman v. Nurbanu4. Pathak, CJ., points out that while exerciseing the discretion conferred under rule 29 of Order 21, Code of Civil Procedure, the Court should duly consider that the party who has obtained a lawful decree is not deprived of the fruits thereof except for good and cogent reasons and that so long as the decree is not set aside by a competent Court, it stands good and effective and should not be lightly dealt with so as to deprive the holder of the lawful decree of the fruits thereof. It is also pointed out that the allegations made against the decree should also be carefully examined by the Court before exercising the discretion and that the mere filing of a suit subsequently for setting aside the decree or challenging the same cannot be a ground for granting stay, unless a strong case on cogent grounds is made out for granting stay. To similar effect is the decision in Talifiqur Rahman v. Sital Prasad.

(3.) IT is unfortunate that the Court below had not adverted to any of these aspects at all, but proceeded to dismiss the petition filed by the petitioner herein on the footing that the injunction application in I. A. No. 215 of 1978 had already been dismissed. But even so, having regard to the features disclosed by the pending proceedings in O. S. No. 85 of 1978, this, in my view, is a case where the petitioner ought not to be granted the discretionary remedy of stay under Order 21, rule 29, Code of Civil Procedure, The result is, the dismissal of the application by the Court below is upheld and the Civil Revision Petition is dismissed No costs. However, the learned District Munsif, Periyakulam, is directed to dispose of O. S. No. 85 of 1978 expeditiously. Revision petition dismissed.