Invoking the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India, one of the decree- holder has moved this Court against the order dated 05.04.2012 passed by Civil Judge (Jr. Division) (Munsif), Giridih in Execution Case no. 01 of 2001 whereby and whereunder a petition filed by one of the decree-holder- petitioner under Order XXI Rule 29 read with Section 151 of the Code of Civil Procedure (in short “the Code”), has been rejected.

2. The relevant facts leading to the filing of this writ application, in short, is that mother of the petitioner and the present respondent nos. 1 and 2 being co-sharer had filed the Eviction Suit no. 52 of 1990 against the present respondent nos. 3 to 5 but the same was dismissed vide judgment and decree dated 24.05.1999. Thereafter, they preferred an Eviction Appeal baring no. 02 of 1999 before the District Judge, Giridih and the same was allowed by judgment and decree dated 24th May, 1999 and judgment of the court of Munsif was set aside. Being aggrieved by the said appellate court’s judgment, the present respondent nos. 3 to 5 preferred a Second Appeal before this Court and after dismissal of the same, S.L.P. (Civil) bearing no. 20286 of 2004 was filed before the Hon’ble Supreme Court, which was also dismissed vide order dated 25.04.2008. Thereafter, the Execution Case no. 01 of 2001 was filed in the court of 2nd Additional Munsif, Giridih by the mother of the petitioner and respondent nos. 1 and 2 against the present respondent nos. 3 to 5. It is pertinent to mention here that the mother of the petitioner during her life time apprehending that the other decree holders, who are her brothers, are trying to grab the joint property had filed a Partition Suit bearing no. 61 of 2009 in the court of Sub-Judge, Giridih for partition of her share but as she died during pendency of the cases, this petitioner and his two sisters were substituted in execution case as well as in Partition Suit and thereafter this petitioner filed an application under Order XXI Rule 29 read with Section 151 of the Code in the Execution Case no. 01 of 2001 with prayer to stay the further proceeding of the execution case in view of the pendency of the Partition Suit no. 61 of 2009 and subsequently another petition was also filed on 04.05.2012 by the petitioner praying therein to keep the execution case in abeyance till the disposal of the partition suit but the court below after hearing both the parties rejected his prayer for stay as indicated above. Hence, this writ.

3. Mr. Sinha learned counsel appearing for the petitioner assailing the order impugned as bad in law seriously contended that the court below erred in rejecting the petition filed by the petitioner for stay of the execution case without appreciating that as there was every apprehension of disposal of the property in dispute by other decree-holders. It was also submitted that the power under Rule 29 of Order XXI of the Code is discretionary and the Court has to exercise such power judiciously and in the interest of justice but the court below erred in not considering that a party, who has obtained the lawful decree, should not be deprived of the fruits of the decree.

4. Per contra, the learned counsel appearing for respondent no. 1 and 2 seriously contended that the petitioner, who is also one of the decree holder, in collusion with the present respondent nos. 3 to 5 are trying to stall the proceeding of execution case, which is pending since 2001 in the garb of partition suit. It was also contended that the dispute went up to the Apex Court and now the only intention is to deprive the decree-holders of the fruits of the decree.

5. A reference of Order XXI Rule 29 of the Code is necessary for the proper adjudication of the question involved in this writ application, which reads as follows:-

“Order XXI Rule 29:- Stay of execution pending suit between decree-holder and judgment-debtor- Where a suit is pending in any Court ag