JUDGMENT :

An application to stay the execution proceedings under Order XXI Rule 29 C.P.C. was dismissed by the execution court under Ext.P3 order, against which, the judgment-debtor came up by relying on the legal position rendered by this Court in Arun Pavalin v. Rajan Achary (1998 (2) KLT 670) and Abdul Samad v. Nahakhan (2020 KHC 688 : 2021 (2) KLT 533).

2. The power to stay execution under this Rule is purely discretionary and the discretion can be exercised by striking a balance not to defeat the execution proceedings and to avoid miscarriage of justice on a defective decree. Hence, utmost bonafides for the second suit alone would entitle the party to avail the benefit of stay of the execution of earlier decree. Rule 29 of Order XXI C.P.C. is in fact precautionary in nature so as to avoid miscarriage and failure of justice based on a defective decree. When there is no question of miscarriage or failure of justice on account of any defect in the decree by virtue of any incompetency or lack of jurisdiction or any other sufficient ground, the matter would not come under the purview of Order XXI Rule 29 C.P.C. Utmost care and caution is required while granting an order of stay unde