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High Court of Karnataka
THE HONOURABLE MR. JUSTICE JAWAD RAHIM
U. Sadananda Udupa
Versus
Smt T. Kusuma Shedthi
CRP.No. 253 of 2011
Decided on : 19-09-2011
On fact, held, A perusal of the impugned order shows the executing Court has transgressed the limits prescribed under Rule 29 of Order 21, C.P.C., and has examined the contentions of the judgment debtor regarding executability of the decree. It has referred to the merits of the claim of the judgment debtor in O.S. 11/11, thereby virtually pre-judging his case. The impugned order shows the executing Court has virtually sat in judgment to decide the merit of the applicant/judgment debtor’s contentions in the suit against the decree under execution. On this basis, it has opined his contentions fall within the scope of Section 47, C.P.C., and unless he files such application, his application under Rule 29 for stay is not maintainable. This approach is certainly erroneous. Further held, The question would be, whether the respondent/decree holder has complied with the conditions in the modified decree to be entitled to enforce it. No doubt executability of the decree has to be gone into in execution proceedings, but the question is, whether the executing Court could have rejected the application filed under Rule 29 of Order 21, C.P.C., which is invoked referring to pendency of the suit. The answer has to be in the negative. The right of judgment debtor under Rule 29 is independent of other grounds he may have against execution of the decree. In the circumstances, the impugned order is not sustainable, and the best course would be to direct the Learned Trial Judge dealing with O.S. 11/11 to permit the respondent/decree holder to question maintainability of the suit, i.e., either to seek rejection of the plaint on the basis that there was no cause of action or that the suit claim was barred by time as permissible under Rule 11 of Order 7, C.P.C., or to decide maintainability of the suit on the basis of averments made in the plaint and written statement. Meanwhile, the executing Court which appears, in the instant case, to be the same Court, shall stay its hand from proceeding with execution.
CODE OF CIVIL PROCEDURE, 1908 - Order 21, Rule 29: [Jawad Rahim, J] Stay of execution pending suit between Decree holder and Judgment debtor - Held, When an application is moved under Rule 29 of Order 21, C.P.C., the executing Court has to examine only whether the suit pending in any other Court is against the holder of such decree or of a decree which is being executed by such Court on the part of the person against whom the decree was passed (applicant in Rule 29). It leaves no scope for doubt that the only consideration for invoking Rule 29 of Order 21, C.P.C., is, pendency of suit in any other Court against the holder of decree filed by the person against whom the decree is sought to be executed. The executing Court thus has to stay its hand on such terms as to security or otherwise as it thinks fit if it is a money decree. If it is not a money decree, then the procedure contemplated under Rule 29 of Order 21, C.P.C., is to stay execution till adjudication of the lis between the parties in the suit, and no considered order relating to merit of the claim in the suit is warranted. Further held, To apply Rule 29 of Order 21, C.P.C., two circumstances should be shown to exist: i) when it is not a money decree, the Court has to merely ascertain pendency of the suit against the holder of decree filed by the judgment debtor; there is no other option other than staying the proceedings. If it is money decree, then the executing Court will stay proceedings subject to conditions like furnishing security, etc., in case otherwise pass considered order.
1. Revision u/s.115 of CPC is directed against the order on I.A.No.1 dated 08.08.2011 in Ex.Case No.14/2011 to stay further proceeding in execution of the decree dated 14.03.2006 and modified award dated 21.02.2009 in O.S.No.96/2003.
2. Petition is listed for admission after notice to the contesting respondent who has entered appearance and is represented by learned counsel Sri.A.Anand Shetty.
3. Heard Sri.S.P.Shankar, Senior designated counsel for the petitioner and learned counsel Sri.A.Anand Shetty for the respondent.
4. From what learned counsel have adverted to and on perusal of the records, it is manifest the respondent Kusuma Shedthi filed execution to execute the decree dated 14.03.2006 in O.S.No.96/2003 as modified subsequently by order dated 21.02.2009 in Lok Adalath by consent of parties. The petitioner was the Judgment Debtor who on receipt of the cause notice filed I.A.No.I invoking Rule 29 of Order XXI of the CPC seeking stay of all further proceedings pending disposal of suit in O.S.No.11/2011 purported to have been filed by him seeking declaration to declare that he is entitled to continue in possession of the schedule premises in terms of the fresh lease between the parties dated 15.12.2010 and for consequential reliefs. It was undoubtedly opposed by the respondent questioning maintainability of the application as also the suit and further proceedings.
5. On contest, the learned trial Judge by the impugned order has dismissed the application against which this revision is filed.
6. The contextual facts which also need reference are:
a) In O.S.No.96/2003, the respondent sought eviction of the petitioner on the basis of termination of tenancy and it appears parties contested the proceedings, but it culminated in passing of the decree dated 1`4.03.2006 directing the petitioner to vacate the premises. It was assailed by him in R.A.No.18/2006 which was pending.
b) During pendency of the appeal, it appears that a proposal was mooted by the Court itself and referred the parties to the Lok Adalath for settlement which it appears both parties meekly accepted and appeared before the Lok Adalath sitting. In the Lok Adalath sitting, they claimed that the order of eviction was maintained and affirmed, but subject to certain modifications.
c) As per the modified judgment and award, the defendant was fastened with the liability of paying enhanced rent for the period specified in the award itself i.e., Rs.6,000/-p.m. from 01.03.2009 till 29.02.2010 and at the rate of Rs.7,000/-from 01.03.2010 to 31.03.2011 on which date, he had to vacate the premises. A direction was also issued to the landlady for refund of the amount of Rs.3,25,000/-deposited with her as earnest money.
d) In terms of the compromise award, respondent issued two cheques for Rs.1,50,000/-and Rs.87,000/- which bounced on presentation and balance subject matter of penal action in C.C.No.661/2006 before the JMFC, Kundapur.
e) The petitioner contends during this period, respondent having realised the inevitable action against her and consequence that may result there from, entered into fresh transaction of lease by indenture of lease dated 15.12.2010 agreeing for fresh lease to allow the petitioner/Judgment Debtor to continue in occupation for eleven months from 01.01.2011 subject to other terms and conditions and covenants. f) The petitioner armed with the said lease deed presumed immunity against the order of eviction in terms of the modified award dated 21.02.2009. However, during this period, the respondent/landlord filed execution No.14/2011 to execute the modified decree 21.02.2009 in O.S.No.96/2003. On receipt of the cause notice, the petitioner has resisted in filing the application. Besides he also filed O.S.No.11/2011 seeking following relief:
i) Declaring that he is entitled to continue his occupation in the schedule premises as lessee as per the lease agreement dated 15.12.2010 entered into with the DHR in substitution of the judgment
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