PRADIP MALLICK Vs. DEB KUMAR BANERJEE

JUDGEMENT

(1.) Heard learned counsel for the petitioner.

(2.) The order dated 05.04.2012 passed by the Court of Civil Judge (Jr. Division), Giridih in Execution Case No. 01 of 2001 rejecting the prayer for stay of the execution case made by the petitioner under Order 21 Rule 29 read with Section 151 of the Code of Civil Procedure, was the subject matter of challenge under Article 227 of the Constitution of India in W. P. (C) No. 3989 of 2012 by the writ petitioner/review petitioner herein. Learned Single Judge vide order dated 16.08.2016 dismissed the writ petition. Petitioner is one of the decree holder apart from respondent nos. 1 and 2. In Partition Suit No. 61 of 2009 preferred before the Court of Sub-Judge, Giridih, after the death of original plaintiff, the present petitioner along with two sisters were substituted. They were also substituted in the Execution Case. Petitioner, accordingly, made a prayer for stay of Execution Case till the pendency of the Partition Suit under Order 21 Rule 29 of the Code of Civil Procedure.

(3.) Learned Single Judge finding that Eviction Suit No. 52 of 1990 against the tenants/respondent nos. 3 to 5 herein had attained finality up to the Hon'ble Supreme Court vide dismissal of SLP (Civil) No. 20286 of 2004 judgment dated 25.04.2008 and that the Execution Case was filed by all the decree holders including the present petitioner, found no infirmity in the order of the learned Executing Court rejecting the prayer for stay. Review of the impugned judgment has been sought on the plea that the interpretation of the provisions of Order 21 Rule 29 of the Code of Civil Procedure accorded by the learned Single Judge suffers from error in law. Learned Single Judge proceeded to hold that for invoking provisions of Order 21 Rule 29 both the proceedings i.e. Execution Case and the Suit should be pending in the same Court, whereas in the instant matter Execution Case was pending in the Court of Civil Judge (Jr. Division), Giridih and the Suit was pending before the Civil Judge (Sr. Division), Giridih. It also held that grant of stay is a matter of discretion of the learned Court and cannot be claimed as a matter of right. Petitioner has sought review of the judgment in question.