Oral Judgment:
1. Not on board. This matter was mentioned by the learned advocate for the respondent in the morning session citing urgency, with a request to take up in the Second session. Considering request, the matter is taken on board. Petitioner is represented by their learned advocate who showed his readiness to work out the petition.
Core issue: ‘Whether if a party not being a Judgment-Debtor in ‘X’ suit, can seek stay to the execution of decree passed in the ‘X’ suit, invoking Order 21 Rule 29 of the Code of Civil Procedure in ‘Y’ suit instituted against the decree holder of ‘X’ suit.’
2. Rule. Rule made returnable forthwith. By the consent of the parties, the petition is heard for final disposal.
3. The petitioner has lodged this petition with following substantive prayers:
| B] The record and proceedings of Civil M. A. No.153/2024 with Regular Civil Suit No.334/2023 is pending on the file of learned 3rd Jt. Civil Judge [JD] Vaijapur be call for and perused. C] By issuing the writ of certiorari or any other order, directions or writ in the nature of writ of certiorari, and perusing the record as above or otherwise the impugned order dt.20/7/2024 passed by learned 3rd Jt. Civil Judge [JD] Vaijapur in Civil M. A. No.153/2024 be quashed and set aside and Civil M. A. No.153/2024 be rejected with heavy cost to petitioners from respondent no.1 and 6 only. |
4.1 The relationship among the parties is not in dispute. In the year 2007, Petitioner’s mother namely Shakuntala d/o Ambadas Mahajan filed Regular Civil Suit No.355 of 2007 for partition and separate possession.
4.2 The Suit of 2007 came to be decreed. Regular Civil Appeal filed by the defendants came to be dismissed. The challenge to both the decrees (Trial Court and First Appellate Court) was turned down by this Court in the Second Appeal. A review was sought to challenge dismissal of the Second Appeal. Review petition was also turned down. The defendants then approached to the Honorable Supreme Court wherein the Honorable Supreme Court declined to interfere into. As such, the decree in Regular Civil Suit No.355 of 2007 stands confirmed.
4.3 The plaintiff/decree holder instituted execution proceedings for implementation of the Decree for partition and separate possession.
4.4 On the other hand, present respondent no.1 filed Regular Civil Suit No.334 of 2023 for setting aside the decree of partition that was passed in Regular Civil Suit No.355 of 2007.
4.5 The respondent no.1/plaintiff in the Suit of 2023 claimed that the decree in 355 of 2007 was not binding on him. To show the locus, the respondent no.1 contended that one Anant Mahipatrao Mahajan had one son namely Ambadas Anant Mahajan and three daughters namely Kashibai Ganpat Golwadikar, Gayabai Ratnaparkhi and Prayagbai Joshi. Respondent no.1 is the son of deceased Prayagbai Joshi.
4.6 Respondent no.1’s plaint says that the property which is sought to be partitioned vide Decree in the suit of 2007, is a part of the undivided ancestral property which has been derived from Anant Mahipatrao Mahajan by Ambadas Anant Mahajan and thereafter parties to the suit of 2007.
4.7 Respondent no.1 thus contends in the suit that considering the undisputed relationship and, that the property sought to be partitioned under the decree of 2007 is an ancestral property fallen from Anant Mahipatrao Mahajan, his mother too had share.
4.8 During the pendency of his suit, the respondent no.1 filed Civil Miscellaneous Application No.153 of 2024 in the Court of Civil Judge Junior Division, Vaijapur thereby seeking cancellation of the decree in Regular Civil Suit No.355 of 2007. Another prayer is also made to stay the execution proceedings arising out of the Suit of 2007.
4.9 The application was contested by the parties. The application was heard by learned Court. At the conclusion, learned 3rd Joint Civil Judge Junior Division, Vaijapur pleased to allow the application vide order dated 20.07.2024.
4.10 Vide the impugned order dated 20-07-2024, the execution of decree passed in Regular Civil Suit No.355 of 2007 is stayed till final decision of the Regular Civil Suit No.334 of 2023. Directions were also given to the present respondent no.1 to proceed with the suit expeditiously. Ancillary directions were given to the respondent no.1 to furnish undertaking that in the event of failure to establish his claim in Regular Civil Suit No.334 of 2023, she shall compensate the defendants for loss caused to them due to delayed execution proceedings.
Feeling aggrieved thereby, the Petitioner – Decree holder Regular Civil Suit No. 355 of 2007 is before this Court.
5. Submissions:
5.1 Mr. D. K. Kulkarni, learned Advocate for petitioners opens his argument with a submission that the learned Civil Judge decided the Civil Miscellaneous Application and the passed the impugned order without issuing notice to the present petitioner.
5.2 Learned Advocate for the petitioner Mr. D. K. Kulkarni would submit that the proceedings undertaken by the learned Judge of the Civil Court are contrary to the procedure provided under the Civil Procedure Code. He would submit that evidently respondent no.1 is not a judgment debtor to the decree passed by the Civil Court in the suit of 2007.
5.3 He submits that Order 21 Rule 29 of the Code of Civil Procedure is abundantly clear on this point. The recitals of the impugned order will show that the Civil Court has exercised the powers under Order 21 Rule 29 of the Code of Civil Procedure; and has stayed their execution proceedings. That, no notice of hearing the Civil Miscellaneous Application was served on the petitioner. Had notice been given to the petitioner, he would have contested the application.
5.4 Mr. Kulkarni concludes his submissions by contending that apparently Order 21 Rule 29 of the Code of Civil Procedure could not have been invoked by the learned Civil Judge, and hence the impugned order deserves to be quashed and set aside.
5.5 Mr. P. P. Dawalkar, learned Advocate representing respondent no.1 vehemently opposes the petition. He would submit that the pleadings in the later suit i.e. 334 of 2023 would clearly reveal the relationship inter se the parties.
5.6 He would submit that it is apparent that the plaintiff i.e. the present respondent no.1 had locus to file the suit and had also share in the ancestral properties in the subject matter/properties of the suit of 2007.
5.7 Mr. Dawalkar further continue to submit if the execution of the Decree in Suit of 2007 is allowed to be effected, the very purpose of the later suit of 2023 stands frustrated. He would submit that although the Civil Judge has made reference to Order 21 Rule 29, the same could be entertained even by application of Section 151 of the Civil Procedure Code. He would object the contention of Mr. Kulkarni, learned Advocate for the petitioners that notice of the Civil Miscellaneous Application No.153 of 2024 was not served upon the petitioner.
5.8 Mr. Dawalkar, learned Advocate concludes his arguments with a submission that evidently despite undisputed relationship and the share in the ancestral properties, his mother was not made party to the partition suit and hence the decree of 2007 suit is not binding upon respondent no.1.
6. Discussion and consideration
6.1 I have heard both the learned Advocates for the respective parties at length, perused the pleadings of the parties and the annexures produced by the respective parties.
6.2 Facts are almost undisputed by the parties. None of the parties dispute their relationship with each other before this Court. The suit of 2007 was filed by daughter of Ambadas Mahajan. Obviously, the partition was sought in the share of Ambadas which he has derived from his father namely Anant Mahajan.
6.3 Respondent no.1’s predominant contention is that the properties of Anant Mahipatrao itself were not partitioned; and hence due to the decree passed in the suit of 2007, the proportion of property which he could be benefited out of the later suit shall be affected. On the count that Anant Mahajan’s property was not partitioned firstly among his sons and daughters, his mother had every right to be a party in the suit that was instituted in the year 2007. On the touchstone of such case raised by the Respondent No. 1, now I deal with the controversy placed before me.
6.4 Suffice to note, the application i.e. Civil Miscellaneous Application No.153 of 2024 does not speak about any legal provision under which this application is filed. Hence the Court has to go by its contents. The contents of the application as also the observations by the Civil Court clearly show that the application was made under Order 21 Rule 29 of Civil Procedure Code.
6.5 As observed supra, learned Judge of the Civil Court held that the application was being dealt under Order 21, Rule 29 of the Civil Procedure Code. For ready reference, the paragraph nos.2 and 3 of the impugned order are reproduced as follows:
| 2. Advocate for applicant vehemently submitted that, execution of the decree passed in RCS No. 355/2007 will be effected on 22/07/2024. The notice to that effect is filed by applicant along with the list at Exh.04. He further submitted that, mother of applicant has share in the suit property however in RCS No.355/2007 she was not made party and decree was obtained. Thereby, her share got evaded. So also, RCS No.334/2023 is filed against respondents seeking declaration and partition of share which is pending before this Court. If such decree gets executed; it will cause irreparable loss to applicant. Hence, it is necessary to stay execution of decree. He prayed to allow the application. 3. Heard advocate for applicant. None appeared and is present for respondents. Perused record. The RCS No.334/2023 seeking declaration and partition is pending before this Court and same is at preliminary stage. The allegations are serious one. If decree got executed as apprehended by applicant it will frustrated the very purpose of RCS No.334/2023 and will cause grave injustice and further lead to multiplicity of the litigation. Having regard to provisions of Order 21 Rule 29 regarding stay of execution pending the suit between decree holder and judgment debtor there are justifiable grounds to grant the prayer till decision of the suit RCS No.334/2023. To save multiplicity of proceeding in interest of justice, I proceed to pass following order:- ORDER 1. Application is allowed. 2. Execution of decree passed in RCS No.355/2007 is stayed till final decision of RCS No.334/2023 3. Applicant is directed to proceed with RCS No.334/2023 expeditiously. 4. Applicant is directed to furnish undertaking that in the event of failure to satisfy his claim in RCS No.334/2023 he will compensate defendants for loss caused to them due to stay of execution petition. 5. This application shall form part of RCS 334/2023. |
| “29. Stay of execution pending suit between decree-holder and judgment-debtor.— Where a suit is pending in any Court against the holder of a decree of such Court or of a decree which is being executed by such Court on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided: Provided that if the decree is one for payment of money, the court shall, if it grants stay without requiring security, record its reasons for so doing.” |
6.8 To be more specific, it is not in dispute that the Respondent No.1 is not a judgment debtor in the Decree passed in Regular Civil Suit No.355 of 2007. If so, in the later suit filed by respondent No.1, he has no right to seek stay to the execution of decree passed in the said suit of 2007.
6.9 Rule 29 of the Order 21, Code of Civil Procedure can not be read in isolation. Order 21 lays down a comprehensive and a model mechanism for execution of the decree passed in the civil suits.
If the Order 21 Rule 29 of the Code of Civil Procedure is read litera legis, it is abundantly clear that it provides remedy only to a Judgment-Debtor of a suit, to settle or adjust a claim filed in another suit proceedings filed by him/her against the Decree holder. The provision is to stay the execution of the decree in former suit between the same parties, with an object to avoid further multiplicity of litigation which may arise if the later suit decrees in favor of the earlier Judgment Debtor – and if execution of the later decree is placed into service.
6.10 A beneficial reference could be made to a judgment rendered by Orissa High Court in the matter of case Paramananda Panda v. Krushna Chandra Panda and Others reported at AIR 1990 Orissa 188. For the sake of convenience, text of paragraph no.4 are reproduced as follows:
| 4. The next question which Mr. Misra for the plaintiff-petitioner urges is that it is true that O. 21, R. 29, Civil P.C. is an extraordinary power and, therefore, unless an extraordinary case is made out, the execution case filed under another decree should not be stayed, but according to him the present case is one of those extraordinary cases where the further proceedings in the execution case should have been stayed by the court below. In order to appreciate the correctness of the aforesaid submission, it would be appropriate to examine the provisions contained in O. 21, R. 29, Civil P.C. The said rule is extracted hereinbelow in extenso:— “29. Stay of execution pending suit between decree-holder and judgment-debtor.— Where a suit is pending in any Court against the holder of a decree of such Court or of a decree which is being executed by such Court on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided: Provided that if the decree is one for payment of money, the court shall, if it grants stay without requiring security, record its reasons for so doing.” The aforesaid provision makes it explicitly clear that an execution case can be stayed to enable the judgment-debtor and the decree-holder to adjust their claims against each other and to prevent multiplicity of execution proceedings. Therefore, a suit by the judgment-debtor against the decreeholder must be pending in order that R. 29 can be made applicable. Admittedly, the plaintiff is not a judgment-debtor as he was not a party to the previous suit. Therefore, in terms, R. 29 of O.21 cannot be said to be applicable to the present case. On this short ground that plaintiff's prayer can be rejected. When the aforesaid position was confronted, Mr. Misra appearing for the plaintiff-petitioner also, conceded that R. 29 in terms might not be applicable since the plaintiff was not the judgment-debtor in the earlier suit the decree of which was being executed. |
In view of the aforesaid discussion I hold that,
(I) Order 21 Rule 29 of Code of Civil Procedure could be invoked only by a Judgment Debtor against the Decree holder, in an another suit filed by the Judgment-Debtor against the Decree-holder.
(II) By no stretch of imagination the Respondent No. 1 can be termed as a ‘Judgment-Debtor’ of the Suit of 2007.
(III) The application filed by the Respondent No.1 is wholly misconceived. While Order 21 Rule 29 of the Code of Civil Procedure makes a clear and cautious provision for stay of an execution of a decree only in specific circumstances, such application could not have been entertained even invoking Section 151 of Code of Civil Procedure.
(IV) For the reasons recorded above, I hold that the Learned 3rd Jt. Civil Judge, Junior Division, Vaijapur mistakenly placed Order 21 Rule 29 of Civil Procedure Code into service to allow the application. Resultantly, I find that the petitioner has made out a successful case for interference of this Court. Writ Petition must succeed. Hence, I pass the following order:
ORDER
a. Writ Petition stands allowed.
b. Impugned order dated 20.07.2024, passed by learned 3rd Joint Civil Judge Junior Division, Vaijapur in Civil Miscellaneous Application No.153 of 2024 is quashed and set aside.
c. Rule made absolute in above terms.
d. Civil Application if any, stands disposed of.