Under Order XXI Rule 29 CPC, stay of execution pending judgment debtor's suit is discretionary, not mandatory; belated fraud suit after failed prior challenges and decade-long execution does not entitle stay, preventing abuse of process.

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this petition filed by Article 227 of the Constitution of India, the petitioners have prayed for setting aside of order dated 13.06.2019, in terms whereof, an application preferred by the judgment debtor/objector under Order 21, Rule 29 of the Code of Civil Procedure, praying for stay of the execution proceedings, i.e. Execution Petition No. 12-10 of 2008, titled as Swarn Garg vs. Bharat Petroleum Corporation Limited has been rejected.

2. Brief facts necessary for the adjudication of this petition are that a suit for recovery of an amount of Rs.65,000/- was filed by the respondent herein against the present petitioners and this civil suit bearing No. 31/1 of 2006, in which present petitioners were proceeded against ex parte, was decreed by the Court of learned Civil Judge (Junior Division) Solan, for an amount of Rs. 65,000/- with interest @ 12% per annum with further direction to the respondent to hand over the possession of the suit land on 16.01.2006. The petitioners filed an application under Order 9, Rule 13 of the Code of Civil Procedure read with Section 151 thereof, alongwith an application under Section 5 of the Limitation Act for condonation of delay on 23.02.2008. They also filed an appeal against the ex parte decree before the learned Appellate Court. The appeal was accompanied by an application filed under Order 41, Rule 3-A of the Code of Civil Procedure. This appeal as well as application for condonation of delay were dismissed in default by learned Appellate Court on 17.04.2009 and the application filed for restoration of the appeal and application was withdrawn by the petitioners on 20.10.2009. Thereafter, an application was filed under Order 9, Rule 13 of the Code of Civil Procedure by the petitioner before the learned Trial Court and vide order dated 10.05.2010, learned Trial Court dismissed the same as not maintainable. The appeal filed against this order by the petitioners was dismissed by the learned Appellate Court on 23.10.2010. Judgment dated 23.10.2010 was challenged by the petitioners by way of CMPMO No. 430 of 2010 before this Court. The same was allowed by this Court in terms of Annexure P-3, dated 14.06.2011 and the matter was remanded to the learned lower Appellate Court to decide the same after hearing the parties. Learned Appellate Court vide judgment dated 16.01.2012 again dismissed the appeal. This order is on record as Annexure P-4. The petitioners challenged this order before this Court by way of CMPMO No. 126 of 2012. This Court in terms of judgment dated 18.09.2012 (Annexure P-5) disposed of the said petition in the following terms:-

“27. In these circumstances, the petition is disposed of with the following directions:-

(a) This petition does not determine the rights of the parties on all the submissions as made in this petition or before the learned Courts below for the reasons that the point of purported misrepresentation, fraud etc. if committed, as alleged, have been left open for adjudication by the learned executing Court.
(b) In view of the judgment passed in S.P. Chengalvaraya Naidu’s case (supra) since the plea of fraud can be set up in any proceedings, it will be open to the petitioners herein to institute objection(s) in execution pending before the learned executing Court.
(c) It will be open to the petitioners herein to object to the execution of the decree on the ground that its 24 execution is barred by the provisions of H.P. Urban Rent Control Act, 1987.
(d) The learned executing Court shall grant an opportunity to both the parties to lead evidence on their respective pleas set up by them and then render its decision. For this purpose both the parties