JUDHISTIR JENA Vs. SURENDRA MOHANTY

JUDGEMENT

(1.) THE petitioner (defendant No. 1) got a decree for declaration of title and recovery of possession in T. S. No. 33 of 1964, in the court of the Munsif, Puri on 18-1-65. The decree was put into execution in Execution Case No. 50 of 1965. Opposite Party No. 1 (the plaintiff) and Opposite Party No. 2 (defendant No. 2) are respectively the son and the widow of late Krushna against whom the decree has been passed. They filed an application under Section 47 C. P. C. challenging the executability of the decree on the ground that it was void. The objection was overruled though both of them were substituted in place of Krushna after his death. The plaintiff has now filed T. S. No. 394 of 1968 for a declaration that the mortgage by conditional sale dated 6-11-50 executed by Krushna in favour of the decree-holder and the decrees in T. M. S. No. 90 of 1954 and T. S. No. 33 of 1964 are not binding on the plaintiff. In this suit the plaintiff filed an application for stay of Execution Case No. 50 of 1965. The execution case was stayed. Against this order granting stay the Civil Revision has been filed.

(2.) MR. Srinibas Misra for the opposite parties supported the order on the strength of Order 21. Rule 29 C. P. C. which runs thus;

(3.) THE main question for consideration is not whether the Court has got the power to grant stay under Order 21, Rule 29 C. P. C. , but the manner in which the Court would ordinarily exercise its discretion. Both the learned counsel were given full opportunity to cite authorities on this aspect of the matter. They made statements that there is no direct authority on the point excepting AIR 1936 Mad 102 kannammal v. Muthukumaraswami which does not discuss any principle. It is therefore necessary to give an elementary analysis as to how this discretion should be exercised.