Important Point – For application of Rule 29 there should be simultaneously two proceedings in one court.

P.R. BORA, J.

1. Heard. Rule. Rule made returnable forthwith by consent of learned Counsel appearing for the parties.

2. Under which circumstances the execution of the decree can be stayed by invoking Order XXI Rule 29 of the Code of Civil Procedure, is the short question, to be determined in the present petition.

3. The present petitioner had filed Special Civil Suit No. 57/2010 against the present respondents which has been decreed on 10th September, 2013. As per the decree so passed, the present respondents were directed to repay to the present petitioner, amount of Rs. 37,94,140/- within the period of three months from the date of decree. The decree also specifies that the suit property shall be kept under the charge of Rs. 37,94,140/- till recovery of the amount by the decree holder from the judgment debtors.

4. Since the order passed in the aforesaid Special Civil Suit was not complied with, the petitioner initiated the Execution proceedings vide Regular Darkhast No. 4/2015. In the said Regular Darkhast proceedings, the present respondents filed an application at Exhibit-30 invoking Order XXI Rule 29 of the Code of Civil Procedure (for short, CPC) and prayed for staying the execution proceedings till disposal of Regular Civil Suit No. 73/2013.

5. It was the contention of the respondents in the aforesaid application that the petitioner has compelled his wife, who is the real sister of the respondents, to file a suit for partition and separate possession bearing Regular Civil Suit No. 73/2013 in the court of Civil Judge, Junior Division, at Ambejogai. It was the further contention of the respondents that the suit property, which is the subject matter of Regular Civil Suit No. 73/2013, is the same property, which has been attached for recovery of decreetal amount in Regular Darkhast No. 4/2015. It was the further contention of the respondents that the petitioner i.e. the decree holder, is defendant No. 7 in the said suit and has filed an application in the said suit for his transposition as plaintiff No. 2 in the said suit. In the backdrop of the aforesaid facts, invoking the provisions under Order XXI Rule 29 of the Code, the aforesaid application was filed at Exh.30 by the respondents. According to the respondents, since Regular Civil Suit No. 73/2013 was pending between the petitioner/decree holder and the Respondent judgment debtors, the further proceedings in Regular Darkhast No. 4/2015 were liable to be stayed. The application so filed was resisted by the decree holder/petitioner. However, the learned Civil Judge allowed the said application and thereby stayed the execution proceeding till disposal of the Regular Civil Suit No. 73/2013 on condition that the judgment debtors shall furnish bank guarantee to the tune of decreetal amount, i.e. Rs. 37,94,140/- within one month from the date of the order.

6. Shri S.S. Choudhari, learned Counsel appearing for the petitioner, submitted that the impugned order is patently wrong. The learned Counsel submitted that having regard to the facts involved in the instant petition, the provisions under Order XXI Rule 29 of the Code would not apply. The learned counsel in support of his contention relied upon the judgment of the Hon'ble Apex Court in the case of Shaukat Hussain alias Ali Akram and Others vs. Smt. Bhuneshwari Devi and Others, AIR 1973 SC 528. In view of the law laid down in the aforesaid judgment, the learned Counsel prayed for allowing the petition thereby setting aside the order dated 30th June, 2015 impugned in the present petition.

7. Shri Bhavthankar, learned Counsel for the respondents, supported the impugned order.

8. I have carefully considered the submissions advanced by the learned Counsel appearing for the respective parties. Since the impugned order is passed under Order XXI Rule 29 of the Code, I deem it appropriate to reproduce the said provision, which reads thus:

“29. Stay of execution pending suit between decree holder and judgment debtor - Where a suit