Case title:
Shaukat Hussain Alias Ali Akram & Ors vs Smt. Bhuneshwari Devi (Dead) by L. RS. & ORS
Date of Order:
25 August 1972
Bench:
Justice D Palekar
Parties:
Appellant – Shaukat Hussain Alias Ali Akram & Ors
Respondent - Smt. Bhuneshwari Devi (Dead) by L. RS. & ORS.
SUBJECT
The case at hand deals mainly with Order XXI rule 29 of the Code of Civil Procedure, 1908. This provision provides that the Court may, on the part of the person against whom the decree was passed, stay execution of the decree until the pending suit has been decided if a suit is filed against the holder of such a decree or against one which is being executed by such a Court. The Court may, on such terms as security or otherwise, stop the execution of the decree until the pending suit has been decided. The proviso to this order states that it is the Court's responsibility to record its reasons for granting a stay if the decree requires payment.
IMPORTANT PROVISIONS
Code of Civil Procedure, 1908
- Order XXI rule 29
OVERVIEW
- A money decree was obtained against the appellants from the court of the Subordinate Judge, Gaya by the respondents.
- Following this, a suit was filed in the court of Munsif 1st to set aside the decree on the grounds of illegality, fraud, and lack of jurisdiction.
- The appellants filed 2 petitions for an injunction and to stay the proceedings of the execution case under Order XXI Rule 29 C.P.C.
- The Munsif court issued two ex-parte orders; however, the respondent was unaware of this fact.
- The executing court passed an order vacating the stay order and calling upon the respondent to take further steps.
- After a while, the property which was the subject in the dispute was attached and sold.
- The appellants objected to this and filed an application under section 47 of the CPC to set aside the sale as it was illegal and done when the stay of execution was subsisting. This order was upheld by the Subordinate Judge.
- On the second appeal, the sale was held valid by the High Court as Munsif was incompetent to stay the decree's execution.
- Aggrieved by this decision, the appellants approached the Hon’ble Supreme Court through a Special Leave Petition.
ISSUE RAISED
- Whether the sale was illegal since execution proceedings had taken place during the existence of a stay issued by a competent court?
- Whether the High Court was wrong in holding that the stay order was not passed by a competent court?
ARGUMENTS ADVANCED BY THE APPELLANT
- Mr. Chagla represented the appellants in this case.
- The counsel submitted that the attached property was very valuable which was sold for a paltry sum; hence this in itself is enough to set the sale aside.
- It was asserted that Munsif was a competent court and thus the High Court decision is not maintainable.
- The counsel also submitted that it was competent for every court to stay execution before it if there was a suit pending before that court filed by the judgment debtor against the decree-holder.
- Reliance was placed on the case of Bombay High Court in Narsidas Nathubhai Vohra v. Manharsing Agarsing Thakor [1931) 33 BOMLR 370] to state that When a decree is transferred and a suit is brought against the holder of a decree of that Court, the Court in which the execution proceedings were first commenced will have jurisdiction to pass a rule 29 Order under Order XXI, although the execution proceedings may be pending before another Judge to whom they have been transferred.
JUDGEMENT ANALYSIS
- The Supreme Court of India dismissed the present appeal and held that the Munsif court had no competence under Order 21 rule 29 to stay the execution of the decree as it exercised small cause court jurisdiction.
- The court viewed that the sale which took place after attachment and proclamation could not be considered invalid. This is on the basis that execution had proceeded during the existence of a valid stay order.
- The court observed that from a mere perusal of the rule, it is obvious that there should be simultaneously two proceedings in one court. One is the execution proceeding at the instance of the decree-holder and the other is a suit at the instance of the judgment debtor. This was held to be the primary condition upon which the court in which the suit is pending may stay the execution before it.
- It was reiterated that Rule 29 indicates that the court's power to stay execution before it flows directly from the fact that the execution is at the instance of the decree-holder whose decree had been passed by the same court. The court had no jurisdiction to stay an execution if it did not pass the decree in execution.
CONCLUSION
Order XXI, CPC deals generally with the execution of decrees and orders. . That order is divided into several topics, each topic containing several rules. The scope of Rule 29 of Order XXI was evaluated and examined in the present case. Justice D Palekar in the judgment interpreted the rule to hold that it is not enough that there is a suit pending by the judgment-debtor; it is further necessary that the suit must be against the holder of a decree of such court. Only in that circumstance will the court in which the suit is pending stay the execution. This was affirmed as the plain meaning of Rule 29 by the Apex Court.
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