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GAUHATI HIGH COURT
M. C. PATHAK, C.J. , JJ.
Quazi Toufiqur Rahman -Appellant
Versus
Mst.Nurbanu Bibi -Respondent
Civil Revn. No. 49 of 1975
Decided On : 30-06-1975
ORDER 21 RULE 29 - STAY OF EXECUTION PENDING SUIT - ORDER 21 RULE 29 CPC - COURT'S DISCRETION TO STAY EXECUTION - JUDICIAL EXERCISE OF DISCRETION - FACTORS TO BE CONSIDERED - ABUSE OF PROCESS OF LAW.
Fact of the Case:
The petitioner obtained a decree in Title Suit No. 52 of 1964 for ejectment of the defendant-opposite party as a tenant. The defendant-opposite party filed Title Suit No. 141 of 1969 for a declaration that the decree in Title Suit No. 52 of 1964 was obtained by fraud and collusion and therefore not binding on her. The defendant-opposite party also filed an application under Order 21, Rule 29, Civil Procedure Code, for staying the execution of the decree in Title Suit No. 52 of 1964 pending disposal of Title Suit No. 141 of 1969. The learned Munsiff allowed the application and stayed the execution.
Finding of the Court:
The court held that the learned Munsiff failed to exercise his jurisdiction properly and judicially in passing the impugned order of stay. The court found that the defendant-opposite party had not been able to make out a just cause for stay of Title Execution Case No. 13/69 and that she was abusing the process of law by delaying tactics.
Issues: 1. Whether the learned Munsiff had jurisdiction to pass the impugned order under Order 21, Rule 29, Civil Procedure Code? 2. Whether the learned Munsiff exercised his discretion under Rule 29 judicially?
Ratio Decidendi: 1. The court held that the learned Munsiff had jurisdiction to pass the impugned order under Order 21, Rule 29, Civil Procedure Code, as the suit in Title Suit No. 141 of 1969 was pending in the same court against the holder of the decree in Title Suit No. 52 of 1964. 2. The court held that the learned Munsiff failed to exercise his discretion under Rule 29 judicially. The court found that the defendant-opposite party had not been able to make out a just cause for stay of Title Execution Case No. 13/69 and that she was abusing the process of law by delaying tactics.
Final Decision: The court quashed the impugned order of the learned Munsiff and allowed the petition.
ORDER:- By this petition under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure, the petitioner has prayed quashing the order dated 20-11-1974 passed by the learned Sadar Munsiff Gauhati in Title Suit No. 141 of 1969 by which the execution of the Decree in Title Suit No. 52 of 1964 has been stayed till decision of the Title Suit No. 141 of 1969 pending in the Court.
2. The facts leading to this revision petition may be briefly stated as follows:-
3. Petitioner Quazi Toufiqur Rahman filed as plaintiff Title Suit No. 52 of 1964 on 27-3-1964 against opposite party Mst. Nurbanu Bibi as defendant. Title Suit No. 52 of 1964 was filed for ejectment of the defendant-opposite party as a tenant in respect of the suit land. The defendant-opposite party filed written statement in Title Suit No. 52 of 1964 on 30-9-1964 but the suit was decreed ex parte on 30-11-1965 for default of the defendant-opposite party. An application for setting aside the ex parte decree was filed by the defendant-opposite party and that petition was registered as Misc. Case No. 4 of 1965 and in due course the Misc. Case was allowed and the ex parte decree was set aside and the Title Suit No. 52 of 1964 was restored to file. Thereafter Title Suit No. 52 of 1964 was decreed ex parte on 14-11-1967 for the second time. The defendant-opposite party filed another application for setting aside the ex parte decree which was numbered as Misc. Case No. 19 of 1967. But the said Misc. Case was again dismissed for default on 14-2-1968 and the application for revival of the petition was also dismissed. Consequently the ex parte decree dated 14-11-1967 in Title Suit No. 52 of 1964 for ejectment of the defendant-opposite party as a tenant has stood effective. Thereafter the decree holder-petitioner put the decree in Title Suit No. 52 of 1964 into execution in Title Execution Case No. 13 of 1969 against the judgment-debtor/opposite party.
4. During the pendency of the Title Execution Case No. 13 of 1969 the judgment-debtor opposite party Mst. Nurbanu Bibi has filed Title Suit No. 141 of 1969 against the decree-holder petitioner Quazi Toufiqur Rahman for a declaration that defendant Quazi Toufiqur Rahman is not entitled to obstruct and/or interfere with the possession of the plaintiff Musstt. Nurbanu Bibi in respect of the suit land in Title Execution Case No. 13 of 1969 which is for execution of the fraudulent decree in Title Suit No. 52 of 1964. In Title Suit No. 141 of 1969 the plaintiff-opposite party Mustt. Nurbanu Bibi also filed an application under Order 39, Rules 1 and 2, Civil Procedure Code, praying for restraining the defendant-petitioner Quazi Toufiqur Rahman from proceeding with Title Execution Case No. 13 of 1969. The application for injunction was rejected by the Court by order dated 18-8-1971 passed in Title Suit No. 141 of 1969. Against the order dated 18-8-1971 rejecting the application for injunction the plaintiff-opposite party preferred a Misc. Appeal before the learned Assistant District Judge who rejected the Misc. Appeal by order dated 20-3-1972.
5. The plaintiff-opposite party thus having failed to restrain the defendant-petitioner from executing the decree in Title Suit No. 52 of 1964 in Title Execution Case No. 13 of 1969 filed an application under order 21, Rule 29, Civil Procedure Code on 12-9-1972 in Title Suit No. 141 of 1969 for staying the execution case (Title Execution case No. 13/69) till disposal of the suit. The learned Munsiff by his order dated 20-11-1974 has stayed Title Execution Case No. 13 of 1969 pending disposal of Title Suit No. 141 of 1969 and the present revision petitioner is directed against this order dated 20-11-1974.
6. Mr. B. Sarma, the learned counsel for the defendant-petitioner firstly submits that the learned Munsiff has no jurisdiction to pass the impugned order under Order 21, Rule 29, Civil Procedure Code, inasmuch as Order 21, applies to execution case only and therefor
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