The central legal point established in the judgment is the requirement for the court to examine factual issues and the petitioner's claim, and the failure of the lower courts to exercise jurisdiction as per the provisions of law.

Ashwani Kumar Mishra,J.

Respondent's predecessor in interest, Goverdhan instituted Small Causes Suit No. 3 of 1992, with the allegation that house has been constructed by him upon Plot No. 382/1, over which the petitioner Guru Dayal is a tenant and as he has failed to pay rent, therefore, a decree of eviction be passed against him. This suit has been decreed on 06.12.2003, and appeal filed against it, has also been rejected. The decree has been put in execution. An objection has been filed by the petitioner judgement debtor, Guru Dayal under Section 47 of Code of Civil Procedure, which has been rejected. Thereafter, Guru Dayal has filed a suit for cancellation of decree dated 06.12.2003 passed in SCC Suit No. 3 of 1992 with the allegation that Goverdhan's father had already executed transfer deed, in respect of his entire share over Plot No. 382 in the year 1973 itself, and he was left with no right, title or interest over any portion of land of Plot No. 382, and therefore, the decree itself be declared illegal and void. Such suit was originally instituted in the year 2008, but the same was subsequently withdrawn with the permission to file a fresh, and thereafter Original Suit No. 223 of 2013 has been filed, which is pending in the same court, where the execution itself is being pressed.

2. The petitioner-judgement debtor has now filed an application in execution proceedings with the prayer that the proceedings be stayed by the court concerned, exercising its jurisdiction under Order XXI Rule 29 of the Code of Civil Procedure. This application has been rejected on 20.10.2014. A challenge made to such order also failed with dismissal of revision on 22.11.2014. Aggrieved, against the aforesaid orders dated 20.10.2014 and 22.11.2014, the present writ petition has been filed.

3. Learned counsel for the petitioner submits that the application under Order XXI Rule 29 of the Code of Civil Procedure was liable to succeed, as the proceedings in execution were pending before the court concerned, where Original Suit No. 223 of 2013 is also pending. He submits that the decree passed by the Judge Small Causes Court was summary in nature, and was subject to grant of declaration by the Competent Civil Court that such decree was illegal. He further submits that the decree in SCC Suit was obtained by concealing material facts that the plaintiff in JSCC suit was left with no right over the property itself, which is required to be examined in the pending suit, and therefore, during the pendency of such suit, the execution is liable to be stayed.

4. Learned counsel appearing for the respondents on the other hand, submits that the decree in JSCC suit has attained finality, and the objection under Section 47 of the Code of Civil Procedure has also been rejected, and in such circumstance, no case to stay the proceeding of execution was made out.

5. Having heard learned counsel for the parties, this Court finds that JSCC suit was decreed in favour of Goverdhan in JSCC Suit No. 3 of 1992, which was filed with the allegation that the suit property situate upon Plot No. 382/1. It was also contended that the petitioner Guru Dayal was tenant and as he has defaulted in payment of rent, therefore, the decree for eviction was liable to be passed. The suit was resisted by the defendant-petitioner with the allegation that he is owner in possession of the suit property, which bears House No. 33 and the same was raised upon the Plot No. 381. On such pleadings, the suit was decreed. It is alleged by the petitioner that subsequently, he has come to know that the entire holdings of Goverdhan on Plot No. 382 had been transferred by his father, way back in the year 1973, and he was not left with any right over Plot No. 382. Such facts have been asserted before this Court in paragraph 24 of the writ petition. Counter affidavit, which has been filed by the respondents, in so far as it relates to paragraph 24 of the writ petition are concerned, no specific repl