SATYANARAYAN VERMA ALIAS SHARMA Vs. KRUSHNA CHANDRA SAHU

JUDGEMENT

(1.) Judgment -debtor is the petitioner in this Civil Revision against the order rejecting his prayer for stay of the execution proceeding in exercise of the power under Order 21, Rule 29, Code of Civil Procedure during pendency of the suit seeking the relief to get rid of the effect of the decree.

(2.) JUDGMENT -debtor was a tenant in respect of a house in Cuttack town. On the application of the decree -holder for evicting the judgment -debtor from the house on the ground of his confide requirement of the same, the House Rent Controller passed the order of eviction which was confirmed in appeal Judgment -debtor has filed Title Suit No. 150 of 1985 for a declaration that the order of eviction passed in the house rent control proceeding under the Orissa House Rent Control Act, 1947 (hereinafter referred to as 'the Act') is without jurisdiction and is a nullity and for a permanent injunction restraining the decree -holder from evicting him from the disputed house under such a void order. The suit is now pending trial.

(3.) THE trial Court rejected the application for stay on the ground that the plea in the suit was raised before the House Rent Control authorities to be negative. The same plea was also raised in the execution proceeding not to be entertained on merits. That order has not been assailed and the suit has been filed on the self -same ground. On such finding, the trial Court observed : ' ..Law is fairly settled that the discretion to stay execution of the decree Under Section 21, Rule 29, CPC, pending a suit by the judgment -debtor should be exercised judicially and not mechanically as a matter of course and Court should duly consider that the party who has obtained a valid decree is not deprived enjoying the fruits thereof. In this case the Jdr. after repeatedly agitating the same plea, in different forums has come up with the present suit and hence simply because he has filed a suit the further proceedings of the execution case should not be stayed....'