BIBIJAN Vs. DURGA BAI

JUDGEMENT

(1.) Dispute in this civil revision relates to a house in Chatrapur town.

(2.) Undisputedly, the landlord decree-holder has obtained an order of eviction against the judgement-debtor under S.7 of the Orissa House Rent Control Act and has initiated Execution Proceeding under S.15 of the said Act against the judgement-debtor. Mother and minor brothers of the judgement-debtor (opposite party No. 2) are the petitioners in this civil revision which arises out of the said Execution Proceeding. Endeavour of the petitioners to continue as tenant of the house by filing an application objecting to the executability of the decree on the ground that the order of eviction is not against them having become unsuccessful, a suit has been filed by the petitioners in the Court of Subordinate Judge, Chatrapur registered as Title Suit No. 40 of 1986 for restraining the opposite party No. 1 decree-holder from executing the decree and from interfering with the possession of the plaintiffs alleging therein that they have acquired interest of monthly tenant under the Orissa House Rent Control Act from Sadhu Khan, the deceased husband of petitioner No. 1 and father of the other petitioners including the judgement-debtor. Temporary injunction with intention to continue in the house prayed for in the suit was refused by order dated 16-11987. Plaintiffs those of whom are minors of tender years have, however, been appointed as joint receivers in respect of the house subject to the condition that they would deposit Rs. 20/- per month. After obtaining the order appointing them as receivers the third attempt to continue in the house was made by filing an application under S.151, C.P.C. in the Executing Court to stay further proceeding in the Execution Case on the grounds amongst others that they have been appointed as receivers by a competent Court in respect of the suit-house. Executing Court having rejected the prayer in the impugned order this civil revision has been filed.

(3.) Stay of execution of a decree is provided for under O.21, R.29, C.P.C. which requires that the suit and the execution proceeding are in the same Court and the decree-holder and the judgement-debtor are parties to the suit. See AIR 1973 SC 528 (Shaukat Hussain v. Smt. Bhubaneswari Devi). Exercise of power under O.21, R.29, C.P.C. to stay the execution of the decree would depend upon facts and circumstances of each case. Even in cases where the pre-requisites of O.21, R.29, C.P.C. are satisfied, Court is not to grant stay liberally. In this Court the principles for exercise of such power have been settled in ILR (1970) Cut 320; (Judhistir Jena v. Surendra Mohanty) (1986) 61 Cut LT 114; (Rauf Khan v. Sara Bibi) (1986) 1 Orissa LR 183; (Pholi Dibya v. Idan Bibi) (1986) 1 Orissa LR 550; (Mst. Kamroon Nisha Bibi v. Yusuf Khan) and (1986) 61 Cut LT 673 (Satyanarayan Verma alias Sharma v. Krushna Chandra Sahu). Where, however, the prerequisites under O.21, R.29, C.P.C. are not satisfied, Court in deserving cases can exercise the inherent power under S.151, C.P.C. In order to have uniformity of approach to the disputes, similar considerations as would be applied in exercise of power under O.21, R.29, C.P.C. would also be applicable to exercise of judicial discretion under S.151, C.P.C.