The main legal point established is that the Execution Court has jurisdiction to entertain an application for stay of execution under Order 21, Rule 29 of the Code, even if the suit is pending in another court, and must exercise its discretion judicially when considering such applications.

Untwlia, J.

The defendant-opposite party in this civil revision application obtained an ex-parte decree for eviction of the plaintiff-petitioner in the Court of Munsif I, at Patna. He proceeded to execute that decree. Under the administrative order of the District Judge of Patna the execution case as usual was transferred to the Execution Munsif at Patna. The petitioner filed his title suit in the Court of Munsif I at Patna, challenging the ex-parte decree on certain grounds' alleged in the plaint. He filed an application in the Court of the Execution Munsif at Patna, in the execution case, under Order 21, Rule 29, of the Code of Civil Procedure, hereinafter called the Code, asking the Execution Court to stay the execution of the decree until the pending suit has been decided. The Execution Munsif has rejected the application. The plaintiff has come up in revision.

2. Order 21, Rule 29 of the Code reads 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”.

The first part of the requirement of the rule is satisfied in this case. The suit is pending or in any event was instituted in the Court against the holder of a decree of that Court. The difficulty arises when it is found that either the suit has been transferred to another Court for disposal and the execution case remains pending in that Court which had passed the decree, which is being executed, or the execution case has been transferred to another Court and the suit remains pending in the original Court. The question then arises as to which Court is meant by the expression “the Court” occurring in the latter part of Rule 29 of Order 21 of the Code. Grammatically and literally, the expression would mean the Court where the suit is pending, but the rule will be nugatory if the strict grammatical interpretation is given in either of the two cases referred to above. To resolve this difficulty, it seems, cases have taken the view that the application can be filed either in the Execution Court where the execution case has been transferred or in the Court where the suit challenging the ex-parte decree is pending, vide (I) Narsidas Nathubhai Vohra V. Manharsingh Agarsingh Thakor (A.I.R. 1931 Bombay 247), where a number of cases relevant on the point has been discussed. Mr. Kanhaiyajee appearing for the opposite party placed reliance upon this Bomhay decision and submitted that the application ought to have been filed in the Munsif I Court where the suit is pending. He, however, conceded that on the basis of the said decision the application filed in the Execution Court has also been put in the proper Court. I am inclined to think that reading Rule 29 in the context of the earlier Rules under the heading "stay of execution" it would be better to take the view that "the Court" means where the execution case is pending. It is not necessary for me to decide whether the Court where the suit is pending will have jurisdiction to entertain an application under Order 21, Rule 29, of the Code, or not, when the execution case has been transferred to another Court or where the suit on transfer is pending in another Court. One difficulty may arise in accepting this view that a Court of coordinate jurisdiction will not find it convenient or legal to stay proceedings in another Court. Be that, however, as it may, on a careful consideration of the matter, I am of the view that the Execution Court in such circumstances has, undoubtedly, jurisdiction to entertain an application under Order 21, Rule 29, of the Code. That being so, the application was filed in the proper Court.

3. On the merits of the order, however, I find that the learned Execution Munsif has not exercised his discretion judicially. He has rejected the prayer of the petitioner,