SUBHAS KUMAR SINGH Vs. SHEO BALAK SINGH

JUDGEMENT

(1.) This application in revision is directed against an order refusing to stay execution under Order XXI. Rule 29 of the Code' of Civil Procedure (hereinafter to be referred to as 'the Code').

(2.) It appears that the opposite party second set and the father of petitioners 1 and 2 filed a title suit (Title Suit No. 136 of 1960) in the court of the 2nd Munsif, Chapra, against the opposite party first set for a declaration of their title to some lands alleged to have been taken in settlement from the landlord and recovery of possession thereof. The Opposite Party first set defendants contested the suit and claimed to have taken settlement of the lands from the other defendants, who are said to have taken settlement of those lands from the zerpeshgidars of the landlord. The suit was decreed by the trial Court. As against that there was an appeal (Title Appeal No. 2/28 of 1964) which was allowed and the decree passed by the trial Court was set aside. The Opposite Party thereafter levied execution of the decree of the appellate court for costs and filed a petition under Section 144 of the Code for restitution by delivery of possession of the lands in question. This was treated as a miscellaneous case (Misc. Case No. 28 of 1972). In this proceeding, the petitioners filed an application for stay of the restitution proceeding under Order XXI, Rule 29 of the Code till the disposal of the title suit (Title Suit No. 7 of 1974) which they had filed for a declaration that the decree passed in Title Appeal No. 2/28 of 1964 was null and void on the ground that the petitioners were not properly represented before the court. It was said that after the decree of the trial court, the petitioners had attained the age of majority but the appellants had not so impleaded them as parties to the appeal, but as minors under the guardianship of their mother. The mother did not properly represent the petitioners in the appeal aforesaid and the decree was tainted with fraud, collusion and gross negligence. The learned Munsif rejected the prayer. Hence, this application.

(3.) Mr. Jaleshwar Prasad appearing for the petitioners has raised two points; firstly, that in view of the provisions of Order XXI, Rule 29 of the Code, it must be deemed to be a mandatory duty of the Court to stay execution provided the requirements of the rule are fulfilled and secondly, that in the present case the learned Munsif has erred in law in applying the principle of injunction under Order XXXIX of the Code to this case and his order, therefore, is fit to be set aside. I must straightway say that there is no merit in either of these contentions.