16 Feb 2023 8:30 AM GMT
The Karnataka High Court has said that a court can exercise powers under Order 21 Rule 29 of the Code of Civil Procedure and pass order of staying the execution proceedings only if the suit challenging the decree and execution proceedings referred are pending before the same court and not before two different courts which are not of coordinate jurisdiction.A single judge bench of Justice S...
The Karnataka High Court has said that a court can exercise powers under Order 21 Rule 29 of the Code of Civil Procedure and pass order of staying the execution proceedings only if the suit challenging the decree and execution proceedings referred are pending before the same court and not before two different courts which are not of coordinate jurisdiction.
A single judge bench of Justice S R Krishna Kumar sitting at Dharwad bench also clarified that the provision would apply only if the suit is instituted prior to institution of the execution proceedings and in the event the execution proceedings have already been instituted, mere institution of suit subsequently and its pendency cannot be made the basis to invoke Order 21 Rule 29 CPC.
Further the court cautioned the trial court by saying “Use of the power and jurisdiction to stay its own proceeding pending before itself by the executing Court has to be exercised only under extraordinary and exceptional circumstances and not as a matter of course and care/caution has to be taken by the executing Court to find out if staying its own proceedings would result in abuse of process of law.”
The observations were made while allowing a petition filed by Sikandar Mohammed Ali Dalal and another and quashing order passed by the Civil Judge, Haliyal dated 01.12.2016, in execution proceedings whereby the application filed by respondent-judgment debtor, seeking stay of further proceedings in the execution petition till disposal of suit pending on the file of the Sr. Civil Judge, Yallapur sitting at Haliyal, was allowed.
The suit filed in 2016 is seeking a declaration that the judgment and decree passed in favour of the petitioners, vide order dated 07.09.2006, by the trial Court directing the respondents to hand over possession of the suit ‘A’ schedule property to the petitioners within a period of three months and granted mesne profits in their favour, which has been later on confirmed by the Supreme Court, was a nullity and for other reliefs.
Referring to Order 21 Rule 29 CPC the court said “If the execution proceedings are pending in one Court and the suit between the decree holder and judgment debtor is pending before another Court, which is not of coordinate jurisdiction, the provisions contained in Order 21 Rule 29 CPC would not be applicable and the same cannot be invoked for the purpose of seeking stay of the execution proceedings.”
Then it held “In the instant case, it is an undisputed fact that execution proceedings are pending before the Civil Judge, Haliyal whereas the suit 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 Yallapur, which are two completely different Courts and not the same Court for the purpose of Order 21 Rule 29 CPC.”
It added “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 stayed till disposal 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.”
Further referring to the judgment of the coordinate bench in the case of M.K. Chintamani Vs. M.K. Jayadeva reported in (1991) 3 KLJ 42, wherein the court adverting to Section 151 CPC has held the inherent power of the Courts to stay proceedings in one more case cannot be exercised to defeat a decree or eviction order in violation of the Act.
The court observed “Sec 151 CPC is also not available to the respondent-judgment debtor to seek stay of further proceedings in execution proceedings, pending disposal of suit.”
Following which it said “The power of the executing Court to stay its own proceedings can be invoked only in cases where a suit has already been instituted by the judgment debtor prior to institution of the execution proceedings and the same will not apply to suits which are instituted subsequent to institution of the execution proceedings.”
It opined “Any another interpretation or construction placed on Order 21 Rule 29 CPC will lead to disastrous consequence since every judgment debtor would be in a position to scuttle, stall and obstruct the execution proceedings by filing a suit after institution of the execution proceedings seeking to enforce the decrees which have attained finality and become conclusive and binding upon judgment debtor.”
Finally, observing that Order 21 Rule 29 CPC is discretionary and should be exercised judiciously and not mechanically as a matter of course. The bench said “The petitioners commenced the litigation in 1971 and have not been able to realise the fruits of the decree passed in their favour despite more than 50 years and the respondent/ judgment debtor has been successfully thwarting, scuttling and obstructing the petitioner from realising the fruits of the decree on one pretext or the other and by filing repeated applications and has even gone to the extent of filing a separate suit in the year 2016.”
The court concluded by saying “I am of the considered opinion that the executing Court clearly fell in error in allowing I.A. No. 12, by passing the impugned order which deserves to be set aside.”
Thus it directed the executing court to proceed further in Execution Petition No. 18/2012 and conclude the proceedings as expeditiously as possible and at any rate within a period of six months.
Case Title: Sikandar Mohammad Ali Dalal & ANR And Babu Hanumanth Mindolkar & Others.
Case No: WRIT PETITION NO. 103071/2017
Citation: 2023 LiveLaw (Kar) 63
Date of Order: 18-01-2023
Appearance: A P Hegde Janmane And Vijay Malali, Advocates for petitioners.
R.V. Itagi, Advocate for respondents.
Click Here To Read/Download Order