The provisions of Order 21, Rule 29 CPC are not intended to bypass the provisions of res judicata and are only intended to protract the execution proceedings.

M. JAGANNADHA RAO, J.

( 1 ) THE petitioners in these seven cases are the Judgment. debtors. The respondent is the decree-holder in all the cases. The revisions arise out of orders refusing to grant stay passed under order 21, Rule 29, CPC.

( 2 ) IT is not in dispute that the respondent filed suits against the petitioners in the year 1966 or so and that those suits for eviction were decreed and the said decrees were confirmed in the first appeals as well as in the second appeals. In some matters the parties approached the Supreme Court and the special leave was refused. Subsequently, the petitioners filed separate suits on the file of 3rd Asst. Judge City Civil Court, hyderabad for stay of execution proceedings in the above mantioned suits which are pending before the 4th Asst. Judge, city Civil Court, Hyderabad The 3rd asst. Judge appears to have granted an order directing maintenance of status quo. That order is said to be still in force.

( 3 ) AS things stood thus the respondent filed a suit against the government before the 9th Asst. Judge, City civil Court, Hyderabad Tne respondent is also said to have filed another suit against the Municipality, Subsequently it is now not in dispute that the Chief judge, City Civil Court, Hyderabad has passed an order directing the suits filed by the petitioners before the 3rd Asst. Judge as well as the suit filed by the respondent before the 9th Asst. Judge, to be transferred to the 4th Asst. Judge, city Civil Court, Hyderabad where execution proceedings are pending sgainst the petitioners. At that stage the petitioners have filed the present applications under Order 21, R. 29. CPC for stay of the execution proceedings pending disposal of the suits filed by them whicn have since been transferred to the 4th asst. Judge.

( 4 ) IN my view, prime facie, the provisions of Order 21, Rule 29 CPC are not attracted to the facts of this case. As has been held in Mahesh Chandra Vs. Jogendra Lal (1) (AIR 1928 Cal. 222) the purpose of Order 21, Rule 29, CPC is to prevent- (1) the judgment debtor being compelled to satisfy the decree by providing the sum due when it might be proved (after his claim against the decree-holder was finally determined) that on balance, he owed the decree-holder less than the decretal sum or, it might be, nothing at all and. (2) to avoid multiplicity of execution proceedings. Similarly in kannammal Vs. Muthu Kumaraswami (2) (AIR 1936 Mad. 102) it has been laid down that the object of the rule is that should a plaintiff in a pending suit succeed therein, then there can be an adjudgment of the decree or claim by that plaintiff against the decree obtained against him in the other suit in the same court without it being necessary for the successful Plaintiff in the pending suit to take out execution proceedings.

( 5 ) IN my opinion, the intendment behind O. 21, R 29 CPC is the prevention of multiplicity of proceedings and to ensure that the plaintiff can set off or wipe out any amount due by him towards any amount due to him, It is also true that the above provision applies to suits relating to immovable property and that raises an important question. There may be cases where the judgment debtor has acquired a fresh title or right to possession of the same property on account of certain events taking place subsequent to the date of decree, thus acquiring a superior title to retain the property however, if the title to the property or possession remains the same, the judgment-debtor cannot resort to Order 21, rule 29, CPC merely becuse he has not put forward a plea which was open to him at the time when the decree was obtained against him, earlier. If such resort to Order 21, Rule 29, CPC is permitted, it would enable judgment- debtors to by pass the provisions of constructive resjudicata incorporated in sec. 11 CPC and protract the execution proceedings endlessly

( 6 ) IN the present batch the plaintiffs-petitioners are seeking to avoid execution proceedings in respect of decree

Click Here to Read the rest of this document