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2022 Supreme(Raj) 1064
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Mahendar Kumar Goyal, J.
Badri Son Of Shri Balu – Appellant
Versus
Nirmala Devi & Ors. – Respondents
S.B. Civil Writ Petition No. 6546 of 2022
Decided On : 12-05-2022
Mr. Vijayant Nirwan, for the Appellant. ;
Section 10 CPC is not applicable when the execution petitions arise from decrees of different nature.
Headnote:
Section 10 of the Code of Civil Procedure (CPC) deals with the stay of execution proceedings. It provides that where a suit is pending in any court against the same parties and the matter in issue is directly and substantially in issue in the suit, the court may stay the execution proceedings. In this case, the court held that Section 10 CPC is not applicable as the execution petitions arise from decrees of different nature.
Fact of the Case:
The petitioner filed a writ petition against the dismissal of their application under Section 10 CPC for staying the execution proceedings. The execution petition arose from a decree for mandatory and permanent injunction, while another execution petition was pending for the recovery of an amount advanced under an agreement to sell. The petitioner contended that since the subject matter of execution in both decrees is common, the application should not have been dismissed. The court held that the provision of Section 10 CPC is not attracted as the execution petitions arise from decrees of different nature. The writ petition is dismissed.
Finding of the Court:
Ratio Decidendi:
Result:
ORDER
1. The unsuccessful judgment-debtor has preferred this writ petition against the order dated 12.04.2022 whereby, an application under Section 10 CPC for staying the execution proceedings, has been dismissed by the learned Civil Judge, Kekri, District Ajmer.
2. The facts in brief are that in an execution petition arising out of the decree dated 07.12.2016 passed by the learned Civil Judge, Kekri in Civil Suit No.88/2011 filed by the respondents-decree holder for mandatory and permanent injunction, the judgmentdebtor moved an application under Section 10 CPC stating therein that another execution petition No.2/2006 is pending between the same parties for execution of the decree dated 09.12.2005 passed by the Court of learned Additional District Judge, Kekri, District Ajmer in Civil Suit No.25/2004 filed by the respondents No.3 & 4 against him and hence, the instant execution proceeding be stayed. The application has been dismissed by the learned Executing Court vide order dated 12.04.2022, which is subjectmatter of execution.
3. Learned counsel for the petitioner contended that since the subject-matter of execution in both the decrees is common, the learned Executing Court erred in dismissing the application.
4. Heard. Considered.
5. The learned Executing Court has dismissed the application filed by the petitioner under Section 10 CPC on the premise that both the execution petitions arise out of decree passed by the competent Court under proceedings of altogether different nature. The execution petition No.2/2006 arises out of a decree dated 09.12.2005 for recovery of the amount advanced by the respondents No.3 & 4 under an agreement to sell to the petitioner; whereas, the instant execution petition arises out of a decree for mandatory and permanent injunction granted in favour of the respondents No.1 to 4. Merely because the subject matter of execution is common, provision of Section 10 CPC are not attracted. Learned counsel for the petitioner could not satisfy that the order dated 12.04.2022 suffers from any patent jurisdictional error or perversity warranting interference of this Court under its supervisory jurisdiction.
6. The writ petition is dismissed accordingly.
