PRABHUDAYAL AGRAWAL Vs. SWETA AGRAWAL

JUDGEMENT

(1.) The present petition has been filed by the petitioner being aggrieved by the order dtd. 21/8/2025 passed in execution case no. EXA/540000/2014 by the 29th Civil Judge, Senior Division, Jabalpur, whereby an application submitted by the Judgment debtor/respondent for staying the execution of proceedings under Order 21 Rule 29 of CPC has been allowed and the execution proceedings has been stayed till the decision of the civil suit pending in respect of the subject matter of the execution.

(2.) It has been contended by learned counsel for the petitioner that the Hon'ble Apex Court in the case of Shri Krishna Singh vs. Mathura Ahir and Ors. reported in (1981) 4 SCC 421, following the principle of law laid down by the Hon'ble Apex Court in the earlier judgment of Shaukat Hussain alias Ali Akram vs. Smt. Bhuneshwari Devi (dead) by Lrs. reported in AIR 1973 SC 528; has held that Rule 29 provides that the power of the Court to stay execution before it flows directly from the fact that the execution is at the instance of the decree holder whose decree had been passed by that court only. If the decree in execution was not passed by it, it had no jurisdiction to stay the execution. It has further been submitted that the other High Courts have also held accordingly and relied on the judgment of the Bombay High Court passed in Kum. Aniket Anant Late & Ors. vs. Shri Prakash Balu Lale & Ors. reported in (2018) 3 BOM CR 368, wherein, it is held that the suit and the execution proceedings must be pending in one and the same court in order to invoke the provisions of Order XXI Rule 29 of the CPC.

(3.) Considering the backdrop of the present case, it is ample clear that the civil suit in regard to the subject matter for declaration of title and partition are pending and in that, one suit for mandatory injunction by evicting the respondents from the subject matter of the suit has also been filed by the present petitioner who has also claimed his right in the subject matter through succession. It is submitted that the decree of eviction has been passed against all the respondents treating them to be licencee on the basis of an agreement and therefore, such decree cannot be stayed on the ground that the respondents were permitted to occupy the suit accommodation and despite of notice, they have not vacated the premises and became an encroacher. It is submitted that the learned Court below has erred in law in allowing such application against the settled principle of law as laid down by the Hon'ble Apex Court.