The main legal point established in the judgment is that the execution of a decree may be stayed during the pendency of an appeal filed by the decree holders, unless an extraordinary case is made out.

JUDGMENT :

Dr. Akshaya Kumar Rath, J. - 1. Aggrieved by and dissatisfied with the order dated 17.1.2008 passed by the learned Ad hoc Additional District Judge (F.T.C.), Athagarh in Misc. Case No. 2 of 2007 (arising out of Execution Case No. 1 of 2007), the present petition has been filed under Article 227 of the Constitution of India. By the said order, learned ADJ allowed the application filed by the opposite parties under Order 21 Rule 29 C.P.C. read with Section 151 C.P.C. and stayed the further proceeding of the execution case.

2. The petitioners as plaintiffs instituted C.S.(I) No. 47 of 2002 in the court of the learned Civil Judge (Sr. Divn.), Athagarh for declaration that the sale deed bearing No. 2740 dated 29.7.2000 is illegal and void; for declaration that the plaintiffs being legal heirs and successors of Prasanta Kumar Pattnaik (husband of plaintiff-petitioner No. 1 and father of plaintiff-petitioner Nos. 2 and 3) have right, title, interest and possession over the suit lands including the building standing thereon; for permanent injunction restraining the defendant No. 1 from receiving the rent of the building from the tenants (defendant Nos. 2 to 5) for arrear rent from 01.06.2000 to 30.11.2002 amounting to Rs. 90,000/- and to pay rent from 01.12.2002 till the date of eviction/vacation at the rate of Rs. 3,000/- per month, eviction of the defendants and delivery of possession of schedule A and B properties. Subsequently the said suit was transferred to the court of the learned Ad hoc Additional District Judge (F.T.C.), Athagarh. The suit was decreed. Challenging inter alia the part of the decree refusing to grant arrear rent, the plaintiffs filed R.F.A. No. 108/2007 before this Court, which is pending adjudication.

3. While the matter stood thus, the plaintiffs laid Execution Case No. 1 of 2007. The defendant No. 1 filed an application under Order 21 Rule 29 C.P.C. read with Section 151 C.P.C. to stay the further proceeding of the execution case till disposal of R.F.A. No. 108/2007. The petitioners filed objection to the same. By order dated 17.1.2008, learned Ad hoc Additional District Judge (F.T.C.), Athagarh came to hold that when certain findings rendered in C.S.(I) 47 of 2002 is impugned in R.F.A. No. 108/2007, the execution of the decree, drawn up, basing on the judgment in the said suit cannot be allowed. Held so, the learned Executing Court stayed the further proceeding of the execution till disposal of R.F.A. No. 108/2007.

4. Heard Mr. Ramakanta Mohanty, learned Senior Advocate for the petitioners and Mr. P.K. Ghosh, learned counsel for the opposite party No. 1.

5. Mr. Mohanty, learned Senior Advocate for the petitioners submitted that the suit filed by the plaintiffs has been decreed. They cannot be deprived of the fruits of the decree. The further proceeding of the execution case cannot be stayed for an indefinite period till disposal of R.F.A. No. 108/2007. He further submitted that the power under Order 21 Rule 29 C.P.C. has to be exercised sparingly. After unsuccessful in the suit, the opposite party/defendant instituted C.S. (I) No. 15 of 2007 in the court of the learned Civil Judge (Sr. Divn.), Athagarh for specific performance of contract. The subsequent suit is in respect of a portion of the suit schedule property of the previous suit. No prejudice will be caused to the judgment-debtor to get back the properties in the event of success. Thus, it is highly inequitable to deprive of the decree-holders of the fruits of decree on the plea of pendency of the speculative suit. He relied the decisions of this Court, i.e., (1) Judhistir Jena v. Surendra Mohanty AIR 1969 Orissa 233, (2) Pholi Dibya v. Idan Bibi and others 1986(1) OLR 183, (3) Rauf Khan v. Sara Bibi and others 61(1986) CLT 114, (4) Satyanarayan Verma @ Sharma v. Krushna Chandra Sahu 61(1986) CLT 673 (5) Mst. Kamroon Nisha Bibi and others v. Yusuf Khan and others AIR 1987 Orissa 234 and (6) M.S. Jaggi v. Dataram Jagannath, 73(1992) CLT 257.

6. P