M MADHAVA RAO Vs. SHANTHA

JUDGEMENT

(1.) THE Judgment-debtors, who suffered a Specific Performance decree in O.S. No. 2595 of 1991 on the file of X Assistant City Civil Court, Madras, have filed this Civil Revision Petition against the dismissal order in their E.A. No. 3425 of 1995 filed under O. 21, R. 29, C.P.C., praying for stay of further proceedings in E.P. No. 2574 of 1995 filed by the respondent-decree-holder in the said suit for executing the said decree and thereby getting the sale deed in her favour in relation to the suit property. THE said stay is asked for, pending disposal of C.S. No. 953 of 1995 on the file of this Court, filed by one Vasanthi, not a party to O.S. No. 2595 of 1991, and C.S. No. 994 of 1995 on the file of this Court, filed by one Shruthi and one Dhwani, who are also not parties to O.S. No. 2595 of 1981. THE allegation in the supporting affidavit to the said E.A. is that the said Vasanthi is the daughter of the 1st Petitioner herein and pursuant to S. 29-A of the Hindu Succession Act, 1956 which came into force on 25.3.1989, she is entitled to 1/3rd share in the suit property in O.S. No. 2595 of 1981 as coparcener and that, therefore, she sought for a declaration to that effect in the said suit. THErefore, according to the petitioners, the specific performance decree obtained by the respondent herein as if the entire suit property belonged to the petitioners, cannot be executed. Likewise, it is also alleged that the other suit C.S. No. 994 of 95 is for partition of an alleged 2/3rd share in the half share of the 2nd petitioner herein in the suit property in C.S. No. 2595 of 1981. THE abovesaid stay is prayed for in view of the pendency of the abovesaid two suits, according to the petitioner.

(2.) ACCORDING to the counter in the E.A., filed by the respondent, the above referred to C.S. No. 953 of 1995 and C.S. No. 994 of 1995 have been set up only by the petitioners after the abovesaid decree for specific performance was granted on 13.3.1995 by the first appellate Court in the appeal against O.S. No. 2595 of 1981, only with the ulterior motive of preventing the decree-holder from realising the fruits of the decree. It is also pointed out that, in C.S. No. 953 of 1995, in Application No. 665, of 1995, temporary injunction was sought for by the said Vasanthi to restrain the execution of the abovesaid specific performance decree in the abovesaid E.P. No. 2574 of 1995 and that the said Application No. 665 of 1995 was dismissed on 18.8.1995. Likewise, a similar application filed in C.S. No. 994 of 1995, viz., Application No. 707 of 1985 was also dismissed on the same day. I have also been shown a copy of the said order dated 18.8.1995. Further, the abovesaid order dated 18.8.1995 was also confirmed by a Division Bench of this Court in O.S.A. No. 214 of 1995 by order dated 25.9.1995 therein. In the said judgment, this Court, also observed thus:-

(3.) THOUGH learned counsel for the petitioners vehemently argues that the Court below has erred in dismissing the execution application, I am unable to find any substance at all in the argument of learned Counsel for the petitioners. First of all, the said execution application will not lie at all under O. 21 R. 29, C.P.C. The said Rule runs as follows:- "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." After quoting the said Rule, the Supreme Court in Shaukat Hussain v. Bhuvaneshwari Devi (AIR 1973 S.C. 528) has observed thus;-