The discretion to grant a stay of execution proceedings is based on considerations of irreparable injury and the balance of convenience, and the decree-holder should not be deprived of the fruits of the decree except for good reasons.

JUDGMENT :

S.C. Mohapatra, J. - judgment Debtor No. 1 is the petitioner assailing the order of refusal of her application under Order 21, Rule 29, Civil Procedure Code, by the Executing Court.

2. After obtaining the preliminary decree for partition was confirmed in this Court in First Appeal, final decree was passed ex parte and the said decree is being executed. Having failed in the first round " of attack of the decree u/s 47, C. P. C, a suit has been filed by the petitioner in the Court of First Subordinate Judge, Cutback, for specific performance of a contract for sale with the vendor of the decree-holder. Plaintiff-petitioner claims to be in possession of the disputed property delivered to her on the basis of such oral contract or sale in the year 1967.

3. In the same Court where the execution application is pending, a suit by the judgment-debtor against the decree-holder is also pending. However, on mere satisfaction of this pre-condition, the execution proceeding is not to be stayed. As has been observed in Shaukat Hussain alias Ali Akram and Others Vs. Smt. Bhuneshwari Devi (Dead) by Lrs. and Others, :

"It is obvious from a mere perusal of the rule that there should be a simultaneously two proceedings in one Court. One is the proceeding in the execution at the instance of the decree-holder against the judgment debtor and the other, a suit at the instance of the judgment-debtor against the decree-holder. That is a condition under which the Court in which the suit is pending may stay the execution before it."

Stay of the further proceeding in the execution case during tendency of a suit is thus, discretionary and on satisfaction of the precondition, it does not compel a Court to stay the further proceeding.

4. The circumstances under which the discretion is to be exercised has been indicated in a decision of this Court reported in I. L. R. 1970 Cut. 320 (Judhistir Jena v. Surendra Mohanty and another). It has been observed :

"The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the decree might succeed..."

It was further observed :

"No hard and fast rule can be laid down in what cases stay would be granted or refused......' But as has already been stated, rigorous test is to be applied and in most of the cases prayer for stay is bound to be refused......"

5. In applying the test as indicated, in ILR 1970 Cut. 320 (supra), Courts are to examine whether there would be irreparable injury unless the stay is granted and in whose favour the balance of convenience would lie. On the facts and circumstances of this case, it is found that the suit is one for specific performance of contract. The contract is of the year 1967 since when the petitioner alleges to be in possession of the properly on the basis of the contract for sale. Eighteen years after, in the year 1985, after failing in the suit for partition, the suit for specific performance of contract is being filed. Unless stay is granted, the plaintiff-petitioner is bound to be dispossessed from the disputed property. On the other hand, the stay not being granted, the decree-holder-defendant will not get the fruit of a valid decree. Admittedly, the petitioner has a house close to the disputed property and she would not be homeless, in case, she becomes successful in her suit, she can always get restitution of the property. Therefore, neither the balance of convenience is in favour of the petitioner nor would she suffer irreparable injury in case she is evicted in the execution case.

6. In the result, the Civil Revision is dismissed. There shall be no order as to costs.

Final Result : Dismissed