XACA (INDIA PRIVATELTD Vs. JAMUNA PRASAD KAVIRAJ

JUDGEMENT

(1.) This petition in revision arises out of an order staying an execution case which was filed by the present petitioner for executing a decree, which he had obtained from the Bombay City Civil Court, as against the opposite party and which decree had been transferred for execution to the court of Munsif 3rd, Gaya. The opposite party has filed a title suit, namely, title suit No. 74 of 1967 in the court of Munsif 3rd, Gaya, challenging the validity of the decree on the ground that it had been obtained by fraud and for declaration that the decree as null and void. After institution of the suit he filed, an application in that very suit for staying the execution case. As alleged by the petitioner, without issuing of any notice of this application to, the petitioner defendant the court passed an order on 17-1-1968 as follows:--

(2.) It appears that the court below had come to the finding that it had jurisdiction to pass the order in question, on the ground that the court to which the decree had been transferred had powers under Order 21, Rule 29 of the CODE OF CIVIL PROCEDURE, 1908 to pass an order staying the execution. This rule provides as follows:

(3.) It follows, therefore, that the view taken by the court below that it had the power to stay the execution is not correct and the order for stay of the execution case as passed by it cannot be upheld.