# Deepak & Anr v. Distt. Judge Hardoi & Ors

- **Citation:** (2023) 4 ILRA 298
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-04
- **Case number:** Matter Under Article 227 No. 1271 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-anr-v-distt-judge-hardoi-ors-50105
- **Pages:** 11

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Order XXI Rule 29 - Section 37 -
Invoking the provision contained in Order
21 Rule 29 CPC is discretionary and should
be
exercised
judiciously
and
not
mechanically as a matter of course. Mere
satisfaction of the pre-conditions stipulated in
Order 21 Rule 29 CPC is not sufficient for
execution proceedings to be stayed and the
power under this Rule has to be exercised only
in exceptional cases where the interest of justice
requires it and the fundamental consideration
should be that the decree holder should not be
deprived of the fruits of the decree, except for
compelling reasons and unless an extraordinary
case is made out, no stay should be granted
and the decree should be allowed to be
continued. (Para 19)

(i) Order 21 Rule 29 CPC is applicable only
if the suit and the execution proceedings
referred to in the said provisions are
pending before the very same Court and
not before two different courts which are
not of co-ordinate jurisdiction.

(ii)
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. The said
provisions will not apply if the suit is instituted
subsequent to institution of the execution
proceedings.

(iii) 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 and in that event, the executing Court
would not stay further proceedings under these
provisions. (Para 19)

In the present case, the application preferred by
the petitioner u/Order XXI Rule 29 r/w Section
151 of the Code is also required to be adverted
to in which the only ground taken is that in the
Suit filed by the petitioner subsequently, the
issue of title over the Suit property is also
required to be adjudicated and therefore prayer
has
been
made
for
stay
of
execution
proceedings
pertaining
to
aforesaid
Suit
property. (Para 20)

A reading of the application makes it evident
that the application has been drafted in a very
cursory manner. No specific reason has been
indicated for invocation of provisions of Order
XXI Rule 29 of the Code particularly the fact
that no explanation has been furnished as to
how the petitioner was unaware of the initial
Suit proceedings pending since the year 1988
and that too when the petitioner has staked a
claim in Suit property on the basis of coownership. It is also a relevant factor to be
considered that the real brother of petitioner
was party to the initial Suit proceedings in
Regular Suit No. 355 of 1988 and in case
petitioner was claiming co-ownership of the Suit
premises, it does not stand to reason that he
was or could have been unaware of the
aforesaid Suit proceedings

## Text

298 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 4 ILRA 298
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Matter Under Article 227 No. 1271 of 2023

Deepak & Anr. ...Petitioners
Versus
Distt. Judge Hardoi & Ors. ...Respondents

Counsel for the Petitioners:
Anujrag Narain Srivastava, Sudhanshu Tripathi

Counsel for the Respondents:
---

A. Civil Law - Code of Civil Procedure,
1908 - Order XXI Rule 29 - Section 37 -
Invoking the provision contained in Order
21 Rule 29 CPC is discretionary and should
be
exercised
judiciously
and
not
mechanically as a matter of course. Mere
satisfaction of the pre-conditions stipulated in
Order 21 Rule 29 CPC is not sufficient for
execution proceedings to be stayed and the
power under this Rule has to be exercised only
in exceptional cases where the interest of justice
requires it and the fundamental consideration
should be that the decree holder should not be
deprived of the fruits of the decree, except for
compelling reasons and unless an extraordinary
case is made out, no stay should be granted
and the decree should be allowed to be
continued. (Para 19)

(i) Order 21 Rule 29 CPC is applicable only
if the suit and the execution proceedings
referred to in the said provisions are
pending before the very same Court and
not before two different courts which are
not of co-ordinate jurisdiction.

(ii)
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. The said
provisions will not apply if the suit is instituted
subsequent to institution of the execution
proceedings.

(iii) 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 and in that event, the executing Court
would not stay further proceedings under these
provisions. (Para 19)

In the present case, the application preferred by
the petitioner u/Order XXI Rule 29 r/w Section
151 of the Code is also required to be adverted
to in which the only ground taken is that in the
Suit filed by the petitioner subsequently, the
issue of title over the Suit property is also
required to be adjudicated and therefore prayer
has
been
made
for
stay
of
execution
proceedings
pertaining
to
aforesaid
Suit
property. (Para 20)

A reading of the application makes it evident
that the application has been drafted in a very
cursory manner. No specific reason has been
indicated for invocation of provisions of Order
XXI Rule 29 of the Code particularly the fact
that no explanation has been furnished as to
how the petitioner was unaware of the initial
Suit proceedings pending since the year 1988
and that too when the petitioner has staked a
claim in Suit property on the basis of coownership. It is also a relevant factor to be
considered that the real brother of petitioner
was party to the initial Suit proceedings in
Regular Suit No. 355 of 1988 and in case
petitioner was claiming co-ownership of the Suit
premises, it does not stand to reason that he
was or could have been unaware of the
aforesaid Suit proceedings which culminated in
proceedings right up-till this Court in Second
Appellate Jurisdiction. (Para 21)

The provisions of Order XXI Rule 29 of the Code
being inapplicable in the present facts and
circumstances of the case, no exception can be
taken to the orders impugned. (Para 28)
4 All. Deepak & Anr. Vs. Distt. Judge Hardoi & Ors.
299
B. Words & Phrases - (i) 'such court' - The
words 'such court' means, the Court in which
Suit is pending. In other words, the Suit
instituted against the decree holder and
execution proceedings should simultaneously be
pending in the same Court.

This implies that one Court cannot stay
proceedings of another Co-ordinate Court. Even
in case where a decree is transferred for
execution to another Court, provisions of Order
XXI Rule 29 of the Code would be inapplicable.
The provisions of Section 37 of the Code have
also been adverted to explain the expression
'Court which passed a decree'. (Para 12, 13)

In the present case, it is admitted between the
parties that while Regular Suit proceedings are
pending in the Court of Additional Civil Judge,
Senior Division, Hardoi, the execution case is
pending consideration before Civil Judge, Senior
Division, Hardoi. Obviously both the Courts are
different and cannot be construed to be same
Court to come within the definition of 'such
court' as envisaged in Order XXI Rule 29 of the
Code. (Para 14)

At the time of filing of application u/Order XXI
Rule 29 of the Code, the Suit as well as
execution proceedings were pending in the
same Court of Additional Civil Judge, Senior
Division, Hardoi but at the time of final
adjudication of the application by means of
impugned order, they were pending in separate
Courts. (Para 15, 16)

(ii) 'where the suit is pending' - It connotes
that a Suit filed against holder of a decree of
such Court should be pending as on the date
when decree is sought to be executed. (Para
17)

(iii) 'simultaneous proceedings' - In case
execution proceedings were filed prior to
institution of Regular Suit against the decree
holder, the same would not come within the
definition of 'simultaneous proceedings' so as to
invoke provisions of Order XXI Rule 29 of the
Code. (Para 18)

(iv) 'pending' - The meaning of the word
'pending' is that the Suit against the judgment
decree holder should be pending as on the date
of institution of execution. (Para 22)

C. Uttar Pradesh Judicial Service Rules,
2001 - Rule 4(o) - With regard to reliance
placed upon Rules, 2001 is concerned, it is quite
evident that the same pertains to service
regulation of judicial officers, which would be
administrative in nature and by no stretch of
imagination can be deemed to include judicial
proceedings as has been submitted. (Para 25)

Writ petition dismissed. (E-4)

Precedent followed:

1. Satyawati Vs Rajinder Singh, (2013) 9 SCC
491 (Para 9)

2. Shaukat Hussain @ Ali Akram & ors. Vs Smt.
Bhuneshwari Devi (Dead) by L.R.S. & ors.,
(1972) 2 SCC 731 (Para 9)

3. Krishna Singh Vs Mathura Ahir & ors., AIR
1982 Supreme Court 686 (Para 9)

4. Balammal & ors. Vs Muthiar Begum & anr.,
2013-5-L.W. 9 (Para 9)

5. Sikandar Mohammad Ali Dalal & anr. Vs Babu
Hanumanth Mindolkar deceased by hi Lrs & ors.,
Writ Petition No. 103071 of 2017 (in the High
Court of Karnataka, Dharwad Bench) (Para 9)

6. Inayat Beg Vs Umrao Beg, AIR 1930 AHD 121
(Para 12)

Precedent distinguished:

1. Bansraj & anr. Vs Jeet Narayan & ors., 2017
(35) LCD 1708 (Para 8, 26)

2. Guru Dayal Vs Vedmati, 2015 (1) ARC 869
(Para 8, 26)

Present petition challenges the order
dated 10.02.2023, passed in Civil Revision
No. 6 of 2023 as well as order dated
21.12.2022, passed by the trial Court
u/Order XXI Rule 29 of the CPC, 1908, as
well as revisional order dated 06.03.2023
affirming the same.
300 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
Mr. Anurag
Narain
Srivastava,
learned
counsel
for
the
petitioners and Mr. Sharad Dwivedi,
learned counsel for opposite party no.3.

2. Vide earlier order dated 24th
March, 2023, notices to opposite party
nos.2, 4 and 9, being proforma in nature,
were dispensed with.

3. Counter and rejoinder affidavits
filed on behalf of parties today are taken on
record.

4. Petition under Article 226 of the
Constitution of India has been filed raising
challenge to the order dated 10th February,
2023 passed in Civil Revision No.6 of 2023
as well as order dated 21st December, 2022
passed by the trial Court under Order XXI
Rule 29 of the Code of Civil Procedure,
1908 (hereinafter referred to as "the Code")
as well as revisional order dated 06th
March, 2023 affirming the same.

5. Learned counsel for the petitioner
submits that initially Regular Suit No.355
of 1988 was filed by the opposite party
no.3 against late Suresh Chandra initially
seeking relief of permanent injunction and
subsequently by amendment, the relief of
possession. The said Suit although was
initially dismissed on 08th May, 1996 but
Appeal No.115 of 1996 was allowed by
means of judgement and order dated 25th
September, 2001. Said Appellate Order was
thereafter challenged in Second Appeal
No.422 of 2001 and was dismissed on
merits on 23th November, 2001 where after
Execution Application No.1 of 2002 was
filed by the opposite party no.3. It is
relevant to indicate that the present
petitioner was not a party to any of the
proceedings.

6. During pendency of the execution
proceedings, the present petitioner filed
Regular Suit No.474 of 2005 against the
opposite
party
no.3
for
permanent
injunction
which
is
still
pending
consideration. During pendency of the said
Suit proceedings, an Application under
Order XXI Rule 29 of the Code was filed
by the petitioner on 19th October, 2005 in
the
execution
proceedings.
The
said
application was rejected vide order dated
18th August, 2009 but Civil Revision
No.79 of 2009 filed therein was allowed
vide judgment and order dated 16th
November, 2010 and the issue was
remanded for consideration afresh. After
remand, the said application for stay of
execution proceedings was rejected vide
order dated 21st December, 2022 which
was challenged in Revision No.6 of 2023
and which has been rejected by means of
impugned order dated 10th February, 2023.

7. Learned counsel for petitioner
submits that the Regular Suit No.355 of
1988 was filed behind the back of
petitioner who also had a titular interest in
the Suit property. It is submitted that the
petitioner did not have any notice of either
the Suit or subsequent proceedings and had
therefore filed the Regular Suit No.474 of
2005 against opposite party no.3 claiming
relief of permanent injunction. It is further
submitted that when petitioner came to
know about the execution proceedings
pending at the instance of opposite party
no.3, the said application under Order XXI
Rule 29 of the Code was filed. It is
submitted that the petitioner has not filed
any objection under Section 47 of the Code
in execution proceedings.
4 All. Deepak & Anr. Vs. Distt. Judge Hardoi & Ors.
301

8. It is submitted that the trial Court
has
rejected
the
application
without
considering the impact of Suit filed by
petitioner
in
execution
proceedings
particularly to the effect that petitioner also
had an interest in the Suit property and
therefore
in
case
of
completion
of
execution proceedings, he would naturally
be aggrieved by the said order and
therefore it was incumbent upon the trial
Court to have stayed execution proceedings
till adjudication of Regular Suit instituted
by petitioner. It has been further submitted
that the trial Court as well as Revisional
Court has lost sight of the purpose of Order
XXI Rule 29 of the Code. He has also
placed reliance upon the Uttar Pradesh
Judicial Service Rules, 2001 to submit that
Civil Judge, Senior Division means and
includes various other judicial authorities
including any member of the service posted
under any other nomenclature in terms of
Rule 4 (o) of the aforesaid Rules. In
keeping with the aforesaid statement, it is
further submitted that the terminology used
under Order XXI of Rule 29 of the Code
would include not only the Civil Judge,
Senior Division but also the Additional
Civil Judge, Senior Division since Regular
Suit
No.474
of
2005
is
pending
consideration in the Court of Additional
Civil Judge, Senior Division, Hardoi and
execution proceedings are pending in the
Court of Civil Judge, Senior Division,
Hardoi. He has also placed reliance on the
judgments
rendered
by
Co-ordinate
Benches of this Court in the case of
Bansraj and Anr. vs. Jeet Narayan and
Ors. reported in 2017 (35) LCD 1708 and
Guru Dayal vs. Vedmati reported in
2015(1)
ARC
869
to
buttress
his
submissions.

9. Mr. Sharad Dwivedi, learned
counsel appearing on behalf of opposite
party no.3 as refuted submissions advanced
by learned counsel for the petitioner with
the submission that the provisions of Order
XXI Rule 29 of the Code will be
inapplicable
in
present
facts
and
circumstances particularly when the Suit
instituted
by
petitioner
was
filed
subsequent to institution of execution
proceedings and therefore cannot be said to
be simultaneous proceedings. It is also
submitted that since the execution and
Regular Suit are pending in separate
Courts, then the provision of Order XXI
Rule 29 of the Code would be inapplicable.
It is further submitted that even otherwise
the aforesaid provisions are not to be made
applicable
in
a
mechanical
manner,
otherwise no decree can ever be satisfied
and therefore the word 'pending' in Order
XXI Rule 29 of the Code would be of
particular importance. It has also been
submitted that the application has been
rightly rejected. Learned counsel has
placed
reliance
on
the
following
judgments:-

1. Satyawati vs. Rajinder Singh reported
in (2013) 9 SCC 491

2. Shaukat Hussain @ Ali Akram and
Others vs. Smt. Bhuneshwari Devi (Dead) by
L.RS. and Others reported in 1972 2 SCC 731

3. Krishna Singh vs. Mathura Ahir and
Others reported in AIR 1982 Supreme Court
686

4. Balammal & Others vs. Muthiar
Begum & Another reported in 2013-5-L.W. 9

5. Sikandar Mohammad Ali Dalal and
another vs. Babu Hanumanth Mindolkar
deceased by his Lrs and Others in Writ Petition
No.103071 of 2017 ( in the High Court of
Karnataka, Dharwad Bench)

For the purposes of determination of
present Lis, the applicability of Order XXI
Rule 29 of the Code is required to be
302 INDIAN LAW REPORTS ALLAHABAD SERIES
analyzed as per applicable provision which
is as follows:-

"29. Stay of execution pending suit
between
decree-holder
and
judgmentdebtor.- 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
has
subsequently been amended as applicable
to Allahabad High Court and is in the
following manner:-

"ALLAHABAD.- In Rule 29-

(1) insert the comma and thereafter
the words "or any person whose interests
are affected by the decree, or by any order
made in execution thereof" after the words
"was passed ind before the words "the
Court may";

(2) delete the words "on such terms as
to security or otherwise occurring in the
rule;

(3) substitute "if" for "as" before the
words "it thinks fit"; and

(4) add the following as proviso to the
said rule, namely:

"Provided that in all cases where
execution of the decree is stayed under this
ne the Court shall require the person
seeking such stay to furnish such security
as it may deem fit." (1-6-1957)."

10. A perusal of Order XXI Rule 29
of the Code makes it evident that the same
would be applicable in case 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 a person against whom the decree is
passed or any person whose interest is
affected by the decree or any order made in
execution
thereof
(as
per Allahabad
amendment).

11. The aforesaid aspects of 'such
Court' has been defined by Hon'ble the
Supreme Court in the case of Shaukat
Hussain (supra) in the following manner:-

"It is obvious from a mere perusal of
the rule that there should be simultaneously
two proceedings in one court. One is the
proceeding in execution at the instance of
the decree-holder against the judgmentdebtor and the other a suit at the, instance
of the judgment-debtor against the decreeholder. That is a condition under which the
court in which the suit is pending may stay
the execution before it. If that was the only
condition, Mr. Chagla would be right in his
contention, because admittedly there was a
proceeding in execution by the decreeholder against the judgment-debtor in the
court of Munsif 1st Gaya and there was
also a suit at the instance of the judgmentdebtor against the decreeholder in that
court. But there is a snag in that rule. 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. The words "such
court" are important. "Such court" means
in the context of that rule the court in which
the suit is pending. In other words, the suit
must be one not only pending in that court
but also one against the holder of a decree
of that court.T hat appears to be the plain
meaning of the rule.

It is true that in appropriate cases a
court may grant an injunction against a
4 All. Deepak & Anr. Vs. Distt. Judge Hardoi & Ors.
303
party not to prosecute a proceeding in some
other court. But ordinarily courts, unless
they exercise appellate or revisional
jurisdiction, do not have the power to stop
proceedings in other courts by an order
directed to such courts. For this specific
provisions of law are necessary. Rule 29
clearly shows that the power of the court 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 that court only. If the decree
in execution was not passed by it, it had no
jurisdiction to stay the execution. In fact
this is emphasised by rule 26 already
referred to. In the case before us the decree
sought to be executed was not the decree of
Munsif 1st Court Gaya but the decree of the
Subordinate Judge, Gaya passed by him in
exercise
of
his
Small
Cause
Court
jurisdiction. It is, therefore, obvious that
the Order staying execution passed by the
Munsif, Gaya would be incompetent and
without jurisdiction."

12. From reading of aforesaid
judgment it transpires that the principal
consideration of Hon'ble the Supreme
Court with regard to the words 'such court'
means in the context of that rule, the Court
in which Suit is pending. In other words,
the Suit instituted against the decree holder
and
execution
proceedings
should
simultaneously be pending in the same
Court. Obviously, the proposition which
would be basis of aforesaid judgment is
that one Court cannot stay proceedings of
another Co-ordinate Court. Hon'ble the
Supreme Court in the aforesaid judgment
has also referred to judgment rendered by
this Court in the case of Inayat Beg vs.
Umrao Beg reported in AIR 1930 AHD 121
to hold that even in case where a decree is
transferred for execution to another Court,
provisions of Order XXI Rule 29 of the
Code would be inapplicable. The dissenting
view of Calcutta High Court was overruled.

13. The provisions of Section 37 of
the Code have also been adverted to
explain the expression 'Court which passed
a decree' in the following manner:-

"Section 37. Definition of Court which
passed a decree.- The expression "Court
which passed a decree," or words to that
effect, shall, in relation to the execution of
decrees, unless there is anything repugnant
in the subject or context, be deemed to
include,-

(a) where the decree to be executed
has been passed in the exercise of appellate
jurisdiction, the Court of first instance, and

(b) where the Court of first instance
has ceased to exist or to have jurisdiction
to execute it, the Court which, if the suit
wherein the decree was passed was
instituted at the time of making the
application for the execution of the decree,
would have jurisdiction to try such suit."

14. In the present case, it is admitted
between the parties that while Regular Suit
proceedings are pending in the Court of
Additional Civil Judge, Senior Division,
Hardoi, the execution case is pending
consideration before Civil Judge, Senior
Division, Hardoi. Obviously both the
Courts
are
different
and
cannot
be
construed to be same Court to come within
the definition of 'such court' as envisaged in
Order XXI Rule 29 of the Code.

15. At this stage, learned counsel for
the petitioner has drawn attention to the
fact that at the time of filing of application
under Order XXI Rule 29 of the Code, the
Suit as well as execution proceedings were
pending in the same Court of Additional
Civil Judge, Senior Division, Hardoi but at
304 INDIAN LAW REPORTS ALLAHABAD SERIES
the time of final adjudication of the
application by means of impugned order,
they were pending in separate Courts. The
aspect
of
proceedings
having
been
transferred has already been considered by
Hon'ble the Supreme Court in the case of
Shaukat Hussain (supra) in the following
manner:-

"In Inayat Beg v. Umrao Beg AIR
1930 All 121 (1) the Allahabad High Court
had held that where a decree was
transferred for execution to a court, the
latter could not, under Order 21 rule 29
C.P.C., stay execution of that decree in a
suit at the instance of the judgment-debtor,
the reason being that the decree sought to
be executed was not the decree of 'such
court', that is, the court in which the suit
was pending. That view was dissented from
by the Calcutta High Court in Sarada
Kripa v. The Comilla Union Bank(2). The
reasoning was that the Privy Council had
held
in
Maharajah
of
Bobbili
v.
Narasarajupeda Srinhulu (3 ) that on
transfer of a decree, the original court had
ceased to have jurisdiction by virtue of
section 37 C.P.C. The holder of a decree of
'such court' will include the court to which
the decree has been transferred, the latter
having the same powers in executing the
decree as if it had been passed by it under
section 42 C.P.C.

The above reasoning in the Calcutta
case
is
based
upon
erro-
neous
assumptions. The Privy Council was not
concerned in Maharajah of Bobbili v.
Narasarajupeda
Srinbulu(3)
with
the
impact of sections 37 & 42 on Order 21
rule 29 C.P.C. It was only concerned to see
whether the District Court was the 'proper
court' within the meaning of Art. 182(5) of
the 1st Schedule of the Limitation Act, 1908
in which to apply 'for execution or to take
same step in aid of execution'."

16. Upon applicability of aforesaid
judgment, it is evident that even where a
decree is transferred for execution, stay of
that decree cannot be sought under Order
XXI Rule 29 of the Code since it would not
come within the definition of 'such court'
i.e. the Court in which the Suit is pending.
In view of the aforesaid, even after transfer
of execution proceedings, in the considered
opinion of this Court the said judgment will
apply with full vigour. The aforesaid
judgment of Shaukat Hussain (supra) has
thereafter been followed with approval in
the subsequent judgment of Krishna
(supra) in the following manner:-

"We are fortified in our view by a
decision of this Court in Shaukat Hussain
@ Ali Akram and Ors. v. Smt. Bhuneshwari
Devi (1973) 1 SCR 1022 : (AIR 1973 SC
528), where this Court observed as follows
:

"Rule 29 clearly shows that the power
of the Court to stay execution before it
flows directly from the fact that the
execution is at the instance of the decreeholder whose decree had been passed by
that court only. If the decree in execution
was not passed by it, it had no jurisdiction
to stay the execution."(Emphasis supplied)"

17. The aspect of the word 'where the
Suit is pending' is also of particular
importance since the same connotes that a
Suit filed against holder of a decree of such
Court should be pending as on the date
when decree is sought to be executed which
has also been considered by High Court of
Madras in the case of Balamnal and
others (supra) in the following manner:-

"21.Further, under Order XXI Rule 29
CPC, to stay the execution of the decree,
the following conditions must be satisfied
viz.:
4 All. Deepak & Anr. Vs. Distt. Judge Hardoi & Ors.
305

a)there
must
be
simultaneous
proceedings;

b)an execution by the decree holder
must be pending against the judgment
debtor;

c)the judgment debtor must have filed
a suit against the decree holder; and

d)the suit must be pending.

22.In so far as this case is concerned, the
first condition viz., there must be simultaneous
proceedings, is not at all satisfied by the
revision petitioners herein. The suit in
O.S.No.270/2004 was filed in the year 2004
and the suit was decreed on 22.06.2005. The
appeal was filed in the year 2005 and the same
was dismissed on 10.10.2006. The second
appeal was filed in the year 2006 and the same
was also dismissed on 27.01.2011. The suit in
O.S.No.104/2012 was filed on 20.04.2012
whereas
the
execution
petition
in
E.P.No.107/2011 was filed on 02.11.2011. In
such circumstances, it cannot be said that
simultaneous proceedings are pending so as to
invoke Order XXI Rule 29 CPC.

23.Even assuming that simultaneous
proceedings are pending and even all the
conditions of Order XXI Rule 29 CPC get
satisfied, still staying the execution of the decree
is not automatic, as the Execution Court has to
exercise its discretion whether by staying the
decree, great injustice would be caused to the
decree holder or not."

18. In the aforesaid case also it is evident
that execution proceedings were filed prior to
institution of Regular Suit against the decree
holder and in such circumstances, High Court at
Madras has held that the same would not come
within
the
definition
of
'simultaneous
proceedings' so as to invoke provisions of Order
XXI Rule 29 of the Code.

19. In another judgment rendered by
the High Court of Karnataka in the case of
Sikandar Mohammad Ali Dalal (supra),
the applicability of Order XXI Rule 29 of
the Code has been defined as follows:-

"13. The issue regarding applicability
of Order 21 Rule 29 CPC can be examined
from yet another angle. It is an undisputed
fact that the instant execution proceedings
were
instituted
by
the
petitioners/
decreeholders against the respondent/
judgment debtor in the year 2012 while the
suit in O.S. No. 22/2016 was instituted by
the
respondent/
judgment
debtor
subsequently , i.e., in the year 2016. It is
relevant to state that Order 21 Rule 29
CPC to be applicable, it is also essential
that the suit ought to be pending as on the
date
of
institution of
the
execution
proceedings and Order 21 Rule 29 CPC
will not apply to suits which are instituted
subsequent to institution of the execution
proceedings. To put it differently, 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. 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. Viewed
from this angle also, in the undisputed facts
of the instant case which disclose that the
execution proceedings were instituted prior
to institution of the suit in O.S. No. 22/2016
filed by the respondent/ judgment debtor,
Order 21 Rule 29 CPC would be
inapplicable to the facts of the instant case
306 INDIAN LAW REPORTS ALLAHABAD SERIES
and on this score also, the application I.A.
No. 12 was liable to be dismissed.

14. It is well settled that invoking the
provision contained in Order 21 Rule 29
CPC is discretionary and should be
exercised judiciously and not mechanically
as a matter of course. It is equally well
settled that mere satisfaction of the preconditions stipulated in Order 21 Rule 29
CPC is not sufficient for execution
proceedings to be stayed and the power
under this Rule has to be exercised only in
exceptional cases where the interest of
justice requires it and the fundamental
consideration
should
be
that
the
decreeholder should not be deprived of the
fruits of the decree, except for compelling
reasons and unless an extraordinary case is
made out, no stay should be granted and
the decree should be allowed to be
continued.

17. As can be seen from the aforesaid
judgments, the principles underlying Order
21 Rule 29 CPC can be summarized as
under:

a) That, Order 21 Rule 29 CPC is
applicable only if the suit and the execution
proceedings referred to in the said
provisions are pending before the very
same Court and not before two different
courts which are not of co-ordinate
jurisdiction;

b) That the said provisions will not
apply if the suit is instituted subsequent to
institution of the execution proceedings: In
other words, the said 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;

C) 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 and in that event, the
executing Court would not stay further
proceedings under these provisions."

20. In the present case, for the
purpose of applicability of aforesaid
judgment, the application preferred by the
petitioner under Order XXI Rule 29 read
with Section 151 of the Code is also
required to be adverted to in which the only
ground taken is that in the Suit filed by the
petitioner subsequently, the issue of title
over the Suit property is also required to be
adjudicated and therefore prayer has been
made for stay of execution proceedings
pertaining to aforesaid Suit property.

21. A reading of the aforesaid
application makes it evident that the
application has been drafted in a very
cursory manner. No specific reason has
been indicated for invocation of provisions
of Order XXI Rule 29 of the Code
particularly the fact that no explanation has
been furnished as to how the petitioner was
unaware of the initial Suit proceedings
pending since the year 1988 and that too
when the petitioner has staked a claim in
Suit property on the basis of co-ownership.
It is also a relevant factor to be considered
that the real brother of petitioner was party
to the initial Suit proceedings in Regular
Suit No.355 of 1988 and in case petitioner
was claiming co-ownership of the Suit
premises, it does not stand to reason that he
was or could have been unaware of the
aforesaid
Suit
proceedings
which
culminated in proceedings right up-till this
Court in Second Appellate Jurisdiction.
4 All. Deepak & Anr. Vs. Distt. Judge Hardoi & Ors.
307

22. Although the provisions of Order
XXI Rule 29 of the Code empower the
Executing Court to stay the execution of
decree, at the same time, it is evident that
such a power is not to be exercised in a
cursory or mechanical manner but in
exceptional circumstances only when a Suit
against the decree holder is pending
consideration at the time of filing of
execution.
Applying
the
aforesaid
provisions to Suits filed subsequent to
execution proceedings would lead to absurd
results whereby no decree of any Court of
competent
jurisdiction
can
ever
be
satisfied. This cannot be the meaning and
purpose of Order XXI Rule 29 of the Code
particularly keeping in view the specific
provisions of Rule 29 of the Code itself
which indicates that a Suit should be
pending against the holder of a decree or of
a decree which has been executed. The
obvious conclusion of the word 'pending' is
that the Suit against the judgment decree
holder should be pending as on the date of
institution of execution. This Court is in
respectful agreement with the judgments
rendered by the High Courts of Madras and
Karnataka.

23. Another aspect to be considered is
that Hon'ble the Supreme Court in the case
of
Satyawati
(supra)
deprecated
unreasonable delays in execution of decrees
rendered
by
Courts
of
competent
jurisdiction in the following manner:-

"14. This Court, again in the case of
Marshall Sons & Co. (I) Ltd. vs. Sahi
Oretrans (P) Ltd. & Anr. [ (1999) 2 SCC
325] was constrained to observe in para 4
of the said judgment that

?4. ?..it appears to us, prima facie,
that a decree in favour of the appellant is
not being executed for some reason or the
other, we do not think it proper at this stage
to direct the respondent to deliver the
possession to the appellant since the suit
filed by the respondent is still pending. It is
true that proceedings are dragged for a
long time on one count or the other and on
occasion,
become
highly
technical
accompanied by unending prolixity at every
stage providing a legal trap to the unwary.
Because of the delay, unscrupulous parties
to the proceedings take undue advantage
and person who is in wrongful possession
draws delight in delay in disposal of the
cases by taking undue advantage of
procedural complications. It is also a
known fact that after obtaining a decree for
possession of immovable property, its
execution takes long time?..?

16. As stated by us hereinabove, the
position has not been improved till today. We
strongly feel that there should not be
unreasonable delay in execution of a decree
because if the decree holder is unable to enjoy
the fruits of his success by getting the decree
executed, the entire effort of successful litigant
would be in vain."

24. It is also relevant to indicate that any
person having an interest in the Suit property
with regard to which a decree has been passed
has a remedy not only under Section 47 but also
under Rule XXI Rules 97 to 104 of the Code
due to which also the provisions of Order XXI
Rule 29 of the Code are required to be used
only in exceptional circumstances.

25. With regard to reliance placed upon
U.P.Judicial Services Rules, 2001 is concerned,
it is quite evident that the same pertains to
service regulation of judicial officers, which
would be administrative in nature and by no
stretch of imagination can be deemed to include
judicial proceedings as has been submitted.

26. So far as the judgments relied
upon by learned counsel for the petitioner
308 INDIAN LAW REPORTS ALLAHABAD SERIES
are concerned, reading of the same makes
it evident that the same have been passed
only on the ground that the trial Court
had passed orders impugned therein
without considering the provisions of
Order XXI Rule 29 of the Code and
therefore the petition had been allowed
remanding
the
cases
for
fresh
consideration in terms of the said
provision. A reading of the aforesaid
judgments makes it evident that no
proposition of law nor any ratio decidendi
is evident in the aforesaid judgments and
as such in the considered opinion of this
Court would not have any binding nature.

27. This Court as such is in respectful
agreement with the summary of principles
pertaining to Order XXI Rule 29 of the
Code as indicated herein-above in the case
of Sikandar Mohammad Ali Dalal
(supra) by the High Court of Karnatka.

28. In view of the aforesaid
discussion, the provisions of Order XXI
Rule 29 of the Code being inapplicable in
the present facts and circumstances of the
case, no exception can be taken to the
orders impugned.

29. Resultantly, the petition being
devoid of merits is dismissed.
----------
(2023) 4 ILRA 308
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matter Under Article 227 No. 2393 of 2023

Mohd. Usman ...Petitioner
Versus
Smt. Shagupta Begum ...Respondent
Counsel for the Petitioner:
Sri Ashish Kumar Singh, Sri Ajay Kumar Singh

Counsel for the Respondents:
Sri Prashant Rai, Sri Krishna Nand Rai

A. Civil Law - Striking off of the defence -
Code of Civil Procedure,1908 - Order XV,
Rule 5 - Under sub-rule (2) of Rule 5 of
Order XV C.P.C., striking off of the defence
is in the nature of penalty leading to
serious consequences, therefore, a serious
liability rests upon the Court in the matter
and
power
is
not
to
be
exercised
mechanically while passing the order
under sub-rule (2) of Rule 5 of Order XV
C.P.C. Even in case, representation has not
been filed under sub-rule (2) of Rule 5 of Order
XV C.P.C, it is required on the part of Court to
consider the facts and circumstances already
existing on record. (Para 19)

Impugned order dated 14.11.2022 allowed the
application 65-C and struck off the defence of
the petitioner-defendant only on the ground
that an earlier application Paper No. 41-Ga has
been rejected vide order dated 29.08.2018 and
also affirmed by High Court vide order dated
07.02.2019.

In fact, Judge, Small Causes Court has wrongly
interpreted the order of High Court dated
07.02.2019. Once the Court has granted liberty
to petitioner-defendant to challenge the order of
striking off of the defence, the implied meaning
would be that, while considering the application
to strike off the defence, it is mandatory on the
part of the court below to decide the issue
afresh, including the application Paper No. 41Ga on merits again. The order of High Court
dated 07.02.2019 has annulled the effect of
order dated 29.08.2018 passed by Judge, Small
Causes Court, with liberty to petitioner to raise
this issue again after, in case, any order has
been passed for striking off of the defence.

The spirit of the order of High Court is that, in
case of passing of fresh order for striking off of
the defence, petitioner would have full liberty to
challenge the same and court below is required
to decide the same on merits, without being
impressed with the its earlier order dated
29.08.2018. (Para 23, 24)