PRADIP MALLICK SON OF LATE UMA SHANKAR MALLICK, RESIDENT OF ANDUL DAKSHIN PARA, PS Vs. DEB KUMAR BANERJEE

JUDGEMENT

(1.) Invoking the extra ordinary jurisdiction of this Court under Art. 227 of the Constitution of India, one of the decree-holder has moved this Court against the order dated 05.04.2012 passed by Civil Judge (Jr. Division) (Munsif), Giridih in Execution Case no. 01 of 2001 whereby and where-under a petition filed by one of the decree-holder-petitioner under Order 21, Rule 29 read with Sec. 151 of the Code of Civil Procedure (in short the Code ), has been rejected.

(2.) The relevant facts leading to the filing of this writ application, in short, is that mother of the petitioner and the present respondent nos. 1 and 2 being co-sharer had filed the Eviction Suit no. 52 of 1990 against the present respondent nos. 3 to 5 but the same was dismissed vide judgment and decree dated 24.05.1999. Thereafter, they preferred an Eviction Appeal baring no. 02 of 1999 before the District Judge, Giridih and the same was allowed by judgment and decree dated 24th May, 1999 and judgment of the court of Munsif was set aside. Being aggrieved by the said appellate court's judgment, the present respondent nos. 3 to 5 preferred a Second Appeal before this Court and after dismissal of the same, S.L.P. (Civil) bearing no. 20286 of 2004 was filed before the Honourable Supreme Court, which was also dismissed vide order dated 25.04.2008. Thereafter, the Execution Case no. 01 of 2001 was filed in the court of 2nd Additional Munsif, Giridih by the mother of the petitioner and respondent nos. 1 and 2 against the present respondent nos. 3 to 5. It is pertinent to mention here that the mother of the petitioner during her life time apprehending that the other decree holders, who are her brothers, are trying to grab the joint property had filed a Partition Suit bearing no. 61 of 2009 in the court of Sub-Judge, Giridih for partition of her share but as she died during pendency of the cases, this petitioner and his two sisters were substituted in execution case as well as in Partition Suit and thereafter this petitioner filed an application under Order 21, Rule 29 read with Sec. 151 of the Code in the Execution Case no. 01 of 2001 with prayer to stay the further proceeding of the execution case in view of the pendency of the Partition Suit no. 61 of 2009 and subsequently another petition was also filed on 04.05.2012 by the petitioner praying therein to keep the execution case in abeyance till the disposal of the partition suit but the court below after hearing both the parties rejected his prayer for stay as indicated above. Hence, this writ.

(3.) Mr. Sinha learned counsel appearing for the petitioner assailing the order impugned as bad in law seriously contended that the court below erred in rejecting the petition filed by the petitioner for stay of the execution case without appreciating that as there was every apprehension of disposal of the property in dispute by other decree-holders. It was also submitted that the power under Rule 29ORDER21 of the Code is discretionary and the Court has to exercise such power judiciously and in the interest of justice but the court below erred in not considering that a party, who has obtained the lawful decree, should not be deprived of the fruits of the decree.