CAUSE TITLE:
Sikandar Mohammad Ali Dalal & ANR And Babu Hanumanth Mindolkar & Others.
DATE OF ORDER:
18-01-2023
JUDGE(S):
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
PARTIES:
Petitioner:Sikandar Mohammad Ali Dalal
Respondent:Babu Hanumanth Mindolkar & Others.
SUBJECT
According to the Karnataka High Court, a court may exercise its authority under Order 21 Rule 29 of the Code of Civil Procedure and issue an order delaying the execution of a judgment only if the lawsuit contesting the decree and the referred execution proceedings are being heard by the same court, and not by two separate courts that lack coordinate jurisdiction.
A single-judge bench led by Justice S. R. Krishna Kumar in Dharwad made it clear that the provision only applies if the lawsuit is filed before the execution proceedings are started. If the execution proceedings have already begun, the mere filing of the lawsuit and its ongoing status cannot be used as justification for invoking Order 21 Rule 29 CPC.
BRIEF FACTS
- Before the Civil Judge, Karwar, the petitioners, in this case, filed a lawsuit in O.S. No. 3/1971 seeking possession, mesne profits, and other relief against the respondent in this case. The aforementioned lawsuit was later moved to the Court of Civil Judge, Haliyal (trial Court), and given the new number O.S. No. 79/2003.
- The trial Court decided the case in favour of the petitioners against the respondents by judgment and decree dated 07.09.2006, ordering the respondents to turn over control of the suit's "A" schedule property to the petitioners within three months and granting mesne profits in their favour.
QUESTIONS RAISED
If the challenge to the decree and the execution are not before the same court, can the execution proceedings stay?
ANALYSIS BY THE COURT
- In the 2016 lawsuit, the petitioners are asking for a ruling that the judgment and decree they received in 2006, which was later upheld by the Supreme Court and ordered the respondents to give the petitioners possession of the property listed under Schedule "A" of the lawsuit within three months, was invalid. They are also asking for other relief.
- About Order 21 Rule 29 CPC, the court stated that "the provisions contained in Order 21 Rule 29 CPC would not be applicable and the same cannot be invoked to seek a stay of the execution proceedings if the execution proceedings are pending in one Court and the suit between the decree-holder and the judgment debtor is pending before another Court, which is not of coordinate jurisdiction."
- "In the instant case, it is an undeniable fact that execution proceedings are pending before the Civil Judge, Haliyal while the suit is filed by the respondent-judgment debtor in O.S. No. 22/2016 is pending on the file of the Sr. Civil Judge Haliyal sitting at Yellapur, which are two completely different Courts and not the same Court for Order 21 Rule 29 CPC," the court concluded.
- "I am of the considered opinion that the finding recorded by the executing Court in E.P. No. 18/2012 that the execution proceedings need to be suspended pending the resolution of O.S. No. 22/2016 pending before a different Court, i.e., Sr. Civil Judge, Yallapur sitting at Haliyal, deserves to be set aside," it continued.
- Referring further to the decision of the coordinate bench in the case of M.K. Chintamani v. M.K. Jayadeva reported in (1991) 3 KLJ 42, the court held that the inherent power of the courts to halt the litigation in another case cannot be used to overturn a judgment or eviction order that violates the Act, citing Section 151 CPC.
- The court stated, "The respondent-judgment debtor is also not available to request a stay of further proceedings in execution procedures, awaiting disposition of litigation."
- Then it continued, "The executing Court's power to stay its proceedings can only be invoked in situations where a lawsuit has already been filed by the judgment debtor before the institution of the execution proceedings and the same will not apply to suits that are filed after the institution of the execution proceedings."
- Any other interpretation or construction of Order 21 Rule 29 CPC, it stated, "will have disastrous consequences because every judgment debtor will be in a position to scuttle, stall, and obstruct the execution proceedings by filing a suit after the institution of the execution proceedings seeking to enforce the decrees which have attained finality and become conclusive and binding upon judgment debtor."
- Finally, it should be noted that Order 21 Rule 29 CPC is discretionary and should only be used when necessary, not automatically. The respondent/judgment debtor has been successfully thwarting, scuttling, and obstructing the petitioner from realizing the fruits of the decree on one pretext or another and by filing repeated applications, and has even gone as far as filing a separate suit in 2016," the bench stated. The petitioners started the litigation in 1971 and have not been able to realize the fruits of the decree passed in their favor despite more than 50 years.
- "I am of the considered conclusion that the executing Court fell in mistake in allowing I.A. No. 12, bypassing the impugned order which ought to be set aside," the court stated in its ruling.
- As a result, it instructed the executing court to continue with Execution Petition No. 18/2012 and wrap up the procedures as quickly as possible, preferably within six months.
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