The judgment-debtor cannot be deprived of the fruits of litigation unless sufficient cause is shown to stay the execution, and the power to stay execution is discretionary and to be exercised judicially.

JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 8.3.2019 passed by the learned Civil Judge (Jr.Division), 1st Court, Cuttack in Execution Case No.2 of 2018 arising out of C.S.No.7262 of 2014. By the said order, learned executing court rejected the application of the J.Dr.-petitioner to stay the further proceeding of the execution case till disposal of C.S.No.1005 of 2017.

2. This case has a chequered history. The plaintiff- petitioner instituted C.S.No.7262 of 2014 before the learned Civil Judge (Jr.Division), 1st Court, Cuttack for permanent injunction restraining the defendants-opposite parties from evicting him from the suit house without due process of law. During pendency of the suit, a compromise was arrived at between the parties. Accordingly, they had filed an application on 6.1.2015 under Order 23 Rule 3 CPC for compromise. The suit was decreed in terms of the compromise on 7.1.2015. Thereafter the plaintiff instituted Civil Suit No.1005 of 2017 in the same Court seeking the self-same relief. The D.Hrs. levid Execution Case No.2 of 2018. The plaintiff filed an application under Rules 26 & 29 of Order 21 CPC to stay the further proceeding of the execution case till disposal of Civil Suit No.1005 of 2017. The D.Hrs. filed objection. Learned executing court rejected the petition holding inter alia that the J.Dr. has not assailed the compromise decree passed in C.S.No.7262 of 2014. The decree has attained finality. The D.Hrs. cannot be deprived of the fruits of litigation.

3. Mr.Ranjit Kumar Lenka, learned Advocate for the petitioner submits that the plaintiff is a tenant. He cannot be evicted without due process of law. Earlier suit was decreed in terms of the compromise. There is a clause in the compromise petition that "the present continuation of tenancy shall be completed on 31st December, 2017". Thereafter the plaintiff instituted C.S.No.1005 of 2017. Referring to Rules 26 & 29 of Order 21 CPC, he submits that further proceeding of the execution case shall remain stayed till disposal of C.S.No.1005 of 2017. He places reliance on a decision of the apex Court in the case of Bibekananda Bhowal (dead) by L.Rs. v. Satindra Mohan Deb (dead) by L.Rs, AIR 1996 SC 1985.

4. Before adverting into the contentions raised by the learned counsel for the petitioner, it will be necessary to set out Rules 26 & 29 of Order 21 CPC.

"26. When Court may stay execution.-(1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the Judgment- debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto.

(2) & (3) xxx xxx"

xxx xxx xxx

"29. Stay of execution pending suit between decree- holder and judgment-debtor-Where a suit is pending in any Court against the holder of a decree of such Court [or of a decree which is being executed by such Court], on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."

xxx xxx xxx

5. The words "upon sufficient cause being shown" appearing in Order 26 is material. Merely because another suit has been filed, the same is not per se a ground to stay the execution case. The D.Hr. cannot be deprived of the fruits of litigation.

6. In Judhistir Jena vs. Surendra Mohanty and another, AIR 1969 Ori. 233, this Court held :-

"xxx xxx xxx

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 tha