The executing court has the jurisdiction to pass an order of stay of execution under Order 21, Rule 29 of the Code of Civil Procedure, even if the suit is pending in another court.

1. This is an application by the decree-holder in Title Suit No. 63 of 1970 and is directed against an order dated the 17th of July, 1972 passed in Execution Case No. 20 of 1971, staying delivery of possession of a house standing in plot No. 465, Khata No. 67 of village Kairiya, police station Kahalgaon, district Bhagalpur.

2. The petitioner had obtained an ex parte decree in the aforesaid Title Suit No. 63 of 1970 from the Court of the Subordinate Judge, Bhagalpur, on the 30th of January, 1971. Thereafter, she levied execution of the decree, which was numbered as Execution Case No. 20 of 1971 of the aforesaid Court. The opposite parties in this petition, as judgment-debtors, filed Miscellaneous Case No. 56 of 1971 for setting aside the ex parte decree on the ground that they had no notice of the suit and the service of the summons, etc., were all suppressed. This miscellaneous case was dismissed for default on the 10th of September, 1971 and the judgment-debtors filed a petition for its restoration and also another petition under Order 9, Rule 13 of the Code of Civil Procedure (hereinafter to be referred to as the Code) for the purpose of setting aside the ex parte decree. It appears that the petition for restoration as well as the petition under Order 9, Rule 13 of the Code was a composite sort of a petition and it was registered as Miscellaneous Case No. 117 of 1971. This Miscellaneous Case No. 117 of 1971 was dismissed on merits on the 22nd of May, 1972. Naturally, thereafter, the plaintiff applied for proceeding with the Execution Case No. 20 of 1971 and for delivery of possession of the house.

This application was filed on the 30th of May, 1972. On a petition filed by the judgment-debtors, however, delivery of possession was stayed till the 11th of July, 1972. In the meanwhile the judgment-debtors filed a title suit being Title Suit No. 193 of 1972 of the Court of the Subordinate Judge, Bhagalpur, for a declaration that the ex parte decree obtained in Title Suit No. 63 of 1970 was by fraud and not binding. The decree-holder, on the other side, pressed for delivery of possession to be made in her favour, if necessary, under police protection. Thereafter the impugned order was passed staying delivery of possession. This order, as I have stated above earlier, has been passed in the execution case.

3. Mr. Mishra appearing for the petitioner assailed the order on two grounds:

(i) That the order had been passed without notice to the petitioner and had thus prejudiced the decree-holders cause.

(ii) That the impugned order was not in accordance with Order 21, Rule 29 of the Code inasmuch as the order had been passed not in the suit but in the execution case.

4. Mr. Nawal Kishore Prasad Sinha appearing for the opposite parties has replied that neither of the two grounds of contention had any merit, the order had been passed with due notice to the petitioner and, although the order had been passed in terms of Order 21, Rule 29 of the Code, it was immaterial whether the order was passed in the execution case or in the title suit. He, therefore, submitted that the petition being devoid of any merit should be dismissed.

5. The first ground of contention raised by the learned Counsel for the petitioner loses its strength by reason of what the petitioner has herself stated in paragraph 16 of her petition before this Court. Therein it is stated that:

"That no adequate opportunity was given to the petitioner to show cause in Ex. Case No. 20 of 1971 as to why the prayer made by the judgment-debtors on their petition dated 11-7-1972, should not be granted, as a result of which no rejoinder could be filed by the petitioner to the judgment-debtors application, although formally the lawyer of the parties were heard and the Counsel for the petitioner had opposed the same."

If the lawyers for the parties have been heard and the Counsel for the petitioner has had opportunity to oppose, I do not see as to how there was any prejudice cause