The power of the court under Order XXI, Rule 29 of the Code of Civil Procedure to stay execution is discretionary and the court should consider whether there is sufficient cause to grant a stay.

1. This application in revision is directed against an order refusing to stay execution under Or. 21, R. 29 of the Code of Civil Procedure (hereinafter to be referred to as the Code).

2. It appears that the opposite party second set and the father of petitioners 1 and 2 filed a title suit (Title Suit No. 136 of 1960) in the court of the 2nd Munsif, Chapra, against the opposite party first set for a declaration of their title to some lands alleged to have been taken in settlement from the landlord and recovery of possession thereof. The Opposite Party first set defendants contested the suit and claimed to have taken settlement of the lands from the other defendants, who are said to have taken settlement of those lands from the zerpeshgidars of the landlord. The suit was decreed by the trial Court. As against that there was an appeal (Title Appeal No. 2/28 of 1964) which was allowed and the decree passed by the trial Court was set aside. The Opposite Party thereafter levied execution of the decree of the appellate court for costs and filed a petition under Sec.144 of the Code for restitution by delivery of possession of the lands in question. This was treated as a miscellaneous case (Misc. Case No. 28 of 1972). In this proceeding, the petitioners filed an application for stay of the restitution proceeding under Order XXI, R. 29 of the Code till the disposal of the title suit (Title Suit No. 7 of 1974) which they had filed for a declaration that the decree passed in Title Appeal No. 2/28 of 1964 was null and void on the ground that the petitioners were not properly represented before the court. It was said that after the decree of the trial court, the petitioners had attained the age of majority but the appellants had not so impleaded them as parties to the appeal, but as minors under the guardianship of their mother. The mother did not properly represent the petitioners in the appeal aforesaid and the decree was tainted with fraud, collusion and gross negligence. The learned Munsif rejected the prayer. Hence, this application.

3. Mr. Jaleshwar Prasad appearing for the petitioners has raised two points; firstly, that in view of the provisions of Order 31, Rule 29 of the Code, it must be deemed to be a mandatory duty of the Court to stay execution provided the requirements of the rule are fulfilled and secondly, that in the present case the learned Munsif has erred in law in applying the principle of injunction under Or. 39 of the Code to this case and his order, therefore, is fit to be set aside. I must straightway say that there is no merit in either of these contentions.

4. The argument of the learned Counsel to the effect that the provision of R. 29 of Or. 21 of the Code is mandatory cannot be accepted at all. He has not cited any authority in support of his proposition. The provision of R. 29 of Or. 21 of the Code is as follows :-

"Where a suit is pending in any Court against the holder of a decree of 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."

It has been urged that the word may used herein should be read as shall and it is urged that the learned Munsif had no option but to stay the execution. According to Mr. Prasad there were just two conditions which had to be fulfilled in order to make it obligatory on the part of the court to stay the execution. They were, firstly, that the suit should be pending in the court which had passed the decree under execution and secondly that the suit should have been filed by the person against whom the earlier decree was passed. Once these two requirements are fulfilled: it is said, the Court had no option but to grant stay. In support of his argument, learned Counsel has placed reliance on two decisions one in the case of Hansraj V/s. Satnarain, (AIR 1957 Raj 219) and the other in the case of Smt. Ram Kumari