The discretionary nature of granting a stay of execution under Order 21, Rule 29, C.P.C. and the potential for abuse of the legal process.

1. This Revision Petition has been filed by the Judgment-debtors/the Defendants in O.S. No. 270 of 2004 before this Court. The Respondents are the Decree-holders/the Plaintiffs in the Suit.

2. The parties herein are referred to as per their rankings in the Suit for the sake of convenience.

3. The Suit in O.S. No. 270 of 2004 was filed by the Plaintiffs for recovery of possession and for mandatory injunction before the District Munsif Court, Sholinghur. After contest, the Suit was decreed on 22.6.2005. Thereafter, the matter was taken up on Appeal and finally ended up in this Court in S.A. No. 1268 of 2006 which was also dismissed on 27.1.2011, confirming the Judgment and Decree passed in the Courts below. Thereafter, an Execution Petition in E.P. No. 107 of 2011 was filed by the Plaintiffs/ Decree-holders before the District Munsif Court, Sholinghur to execute the decree obtained in O.S. No. 270 of 2004. Pending E.P., a Suit in O.S. No. 104 of 2012 was filed by the Defendants/Judgment-debtors before Sub-Court, Ranipet, for declaration that they are the absolute owners of the Suit schedule property therein. Their case in that Suit is that the Defendants in that Suit/the Plaintiffs in O.S. No. 270 of 2004 are trying to evict them from their property under the guise of execution of the decree obtained in O.S. No. 270/2004. Thereafter, the Defendants filed an Application in E.A. No. Nil of 2012 in the E.P. No. 107 of 2011 under Order 21, Rule 29 to stay all further proceedings in E.P. No. 107 of 2011 in O.S. No. 270 of 2004, pending disposal of the above Suit in O.S. No. 104 of 2012 filed by the Defendants before the Sub-Court, Ranipet. According to the Judgment-debtors, unless the said Suit is adjudicated upon and decided on merits, the decree obtained in O.S. No. 270 of 2004 should not be allowed to be executed. The Executing Court, by Order dated 6.7.2012 rejected the said Application filed under Order 21, Rule 29, C.P.C., at the pre-numbering stage itself. Aggrieved over the same, the above Revision has been filed by the Judgment-debtors.

4. I have heard the learned Counsel appearing for the Judgment-debtor/the Petitioners herein and Mr. S. Parthasarathy, learned Senior Counsel appearing for the Plaintiffs/the Respondents herein/the Decree-holders. I have also gone through the documents available on record.

5. The learned Counsel appearing for the Petitioners would contend that the Respondents/Plaintiffs under the guise of execution of a decree are claiming property which is not their property. According to him, the property what they are claiming is in a different Survey number and address is also different. When it was pointed out to the Execution Court, the Execution Court without considering this rejected the Application without even numbering the same. It is his further submission that the Judgment-debtors have filed a separate Suit for declaration before the Subordinate Court, Ranipet in O.S. No. 104 of 2012 seeking to declare themselves as the absolute owners of the suit property marked thereon and the same is pending adjudication. Therefore, the Execution proceedings should have stayed by the Court below till the disposal of O.S. No. 104 of 2012. Rejection of the Application filed by the Petitioners herein at the pre-numbering stage itself has resulted in miscarriage of justice, as the Respondents are going to get a property through execution which does not belong to them. Therefore, the decree obtained in O.S. No. 270 of 2004, which is put to execution is based on a mistaken identity and it ought to have been stayed by the Execution Court. Further, it is his case that under Order 21, Rule 29 of C.P.C., the Court has got power to stay the execution of the decree. More so, when the suit filed by the Judgment-debtor is pending against the person against whom the Decree was passed, the Court ought to have stayed the decree until the pending Suit is decided. The failure of the Execution Court to exercise its power