SUDERSHANA DEVI Vs. TULSI RAM

JUDGEMENT

(1.) This revision petition under Section 115 of the Code of Civil Procedure (here -after referred to as the Code) has been preferred by the petitioner against the order dated 21.9.2000 passed by the learned Sub -Judge (2), Shimla whereby an application moved by the petitioner under Order 21 Rule 29 read with Section 151 of the Code in Execution Petition No. 36/10 of 1996 has been dismissed.

(2.) Brief facts leading to the presentation of this petition are that respondent/decree holder Tulsi Ram has filed an execution petition in the Court below seeking execution of a decree passed in his favour on 25.9.1991 in Civil Suit No. 60/1 of 1987 for possession of Shop No. 7, situate at Chhota -Shimla Bazar. The judgment debtors filed an application under Order 21 Rule 29 of the Code before the executing Court for stay of the execution proceedings on the ground that their suit titled Vidya Devi and others v. Tulsi Ram and others, being Civil Suit No. 219/ 1 of 1992 is pending disposal in the executing Court and in case the execution proceedings are not stayed, the judgment debtors would suffer irreparable loss and injury incapable of being compensated in terms of money and it would also lead to multiplicity of litigation and the suit instituted by the judgment debtors will become infructuous. The decree holder/respondent No, 1 contested the application by filing a reply thereto in which the took the preliminary objections that the application was not maintainable, there is no cause of action to file such application and JDs are estopped by their act and conduct from filing the application. On merits, it was averred that the decree holder/respondent No. 1 has obtained a decree after filing a suit under Section 6 of the Specific Reliefs Act but the execution of the decree is being delayed by the judgment debtors on one pretext or the other. The pendency of the suit, however, has not been disputed but it has been claimed that there is no case for grant of stay as prayed for. After hearing the parties, the trial Court dismissed the application by the impugned order. It is admitted case of the parties that the suit instituted by the petitioner has been dismissed by the trial Court after the passing of the impugned order but the petitioner has preferred an appeal against the judgment and decree passed by such Court. The said appeal is pending disposal.

(3.) I have heard the learned Counsel for the parties and have also gone through the records.