SOHAN LAL Vs. RAJMAL

JUDGEMENT

(1.) THIS is an execution second appeal by Sohan Lal judgment-debtor against an appellate cider of the District Judge Partabgarh, confirming an order of the Civil judge, Chittorgarh, refusing to stay execution proceedings pending in his court under Order 21 Rule 29 C. P. C.

(2.) RAJMAL, Motilal and Ratanlal respondents-decree-holders obtained a decree against Sohan Lal judgment-debtor-appellant for Rs. 2,252/- from the court of civil Judge Neemuch in the then State of Madhya Bharat on 15-5-52. The decree-holders got the decree transferred for execution to the court of Civil Judge, nimbahera from where it was transferred to the court of Civil Judge Chittorgarh on the abolition of the court of Civil Judge, Nimbahera, The mother of Sohan Lal filed an objection purporting to be on behalf of Sohan Lal in the court of Civil Judge, chittorgarh during execution proceedings objecting to the execution on the ground that the decree obtained against Sohan Lal was a nullity as he was a minor when the decree was passed and no guardian was appointed. This objection was rejected by the executing court as well as by the first appellate Court. An appeal was preferred in the High Court which was dismissed on 3-4-58 on account of some technical defect. A suit was then instituted in the Court of Civil judge Chittorgarh on behalf of Sohan Lal for a declaration that the decree passed by the Civil Judge Neemuch on 15-5-52 was a nullity, This suit is still pending. During the pendency of this suit Sohan Lal, who has now become a major even according to his own allegation, filed an application in the suit praying for an order of temporary injunction restraining the decree-holders from executing their decree. This application was dismissed. He then filed the present application under order 21 Rule 29 C. P. C. before the executing court for the stay of execution pending decision of the suit between him and the decree-holders. This application was rejected by the execution court on the ground that he had no jurisdiction to stay execution proceedings under Order 21 Rule 29 C. P. C, as the suit pending before it is not against the holder of a decree of the court of Civil Judge chittorgarh. The judgment-debtor preferred an appeal against this order of the executing court. This appeal was rejected. Against that order the present second appeal has been preferred.

(3.) A preliminary objection was taken on behalf of the decree-holders that no appeal lies against an order passed under Order 21 Rule 29 C. P. C. Reliance was placed on Sardar Khan v. Fateh Din, AIR 1922 Lah -480 (2 ). Durga Devi v. Hans raj, AIR 1930 Lah 187, V. Raghavayya v. K. Rattamma AIR 1948 Mad 524 and desikachanar v. Ramachandra, AIR 1951 Mad 56. There is conflict of opinion on the question whether an appeal lies against an order staying or refusing to stay an execution proceeding. The different views have been classified as follows by chitaley in Note 44 to section 47 Code of Civil Procedure :