Point of Law: Order XXI Rule 29 of Code is stay of execution pending suit between decree-holder and judgment-debtor.

JUDGMENT :

(Manish Mathur, J.)

1. Heard Mr. Anurag Narain Srivastava, learned counsel for the petitioners and Mr. Sharad Dwivedi, learned counsel for opposite party no.3.

2. Vide earlier order dated 24th March, 2023, notices to opposite party nos.2, 4 and 9, being proforma in nature, were dispensed with.

3. Counter and rejoinder affidavits filed on behalf of parties today are taken on record.

4. Petition under Article 226 of the Constitution of India has been filed raising challenge to the order dated 10th February, 2023 passed in Civil Revision No.6 of 2023 as well as order dated 21st December, 2022 passed by the trial Court under Order XXI Rule 29 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") as well as revisional order dated 06th March, 2023 affirming the same.

5. Learned counsel for the petitioner submits that initially Regular Suit No.355 of 1988 was filed by the opposite party no.3 against late Suresh Chandra initially seeking relief of permanent injunction and subsequently by amendment, the relief of possession. The said Suit although was initially dismissed on 08th May, 1996 but Appeal No.115 of 1996 was allowed by means of judgement and order dated 25th September, 2001. Said Appellate Order was thereafter challenged in Second Appeal No.422 of 2001 and was dismissed on merits on 23th November, 2001 where after Execution Application No.1 of 2002 was filed by the opposite party no.3. It is relevant to indicate that the present petitioner was not a party to any of the proceedings.

6. During pendency of the execution proceedings, the present petitioner filed Regular Suit No.474 of 2005 against the opposite party no.3 for permanent injunction which is still pending consideration. During pendency of the said Suit proceedings, an Application under Order XXI Rule 29 of the Code was filed by the petitioner on 19th October, 2005 in the execution proceedings. The said application was rejected vide order dated 18th August, 2009 but Civil Revision No.79 of 2009 filed therein was allowed vide judgment and order dated 16th November, 2010 and the issue was remanded for consideration afresh. After remand, the said application for stay of execution proceedings was rejected vide order dated 21st December, 2022 which was challenged in Revision No.6 of 2023 and which has been rejected by means of impugned order dated 10th February, 2023.

7. Learned counsel for petitioner submits that the Regular Suit No.355 of 1988 was filed behind the back of petitioner who also had a titular interest in the Suit property. It is submitted that the petitioner did not have any notice of either the Suit or subsequent proceedings and had therefore filed the Regular Suit No.474 of 2005 against opposite party no.3 claiming relief of permanent injunction. It is further submitted that when petitioner came to know about the execution proceedings pending at the instance of opposite party no.3, the said application under Order XXI Rule 29 of the Code was filed. It is submitted that the petitioner has not filed any objection under Section 47 of the Code in execution proceedings.

8. It is submitted that the trial Court has rejected the application without considering the impact of Suit filed by petitioner in execution proceedings particularly to the effect that petitioner also had an interest in the Suit property and therefore in case of completion of execution proceedings, he would naturally be aggrieved by the said order and therefore it was incumbent upon the trial Court to have stayed execution proceedings till adjudication of Regular Suit instituted by petitioner. It has been further submitted that the trial Court as well as Revisional Court has lost sight of the purpose of Order XXI Rule 29 of the Code. He has also placed reliance upon the Uttar Pradesh Judicial Service Rules, 2001 to submit that Civil Judge, Senior Division means and includes various other judicial authorities including any member of the service posted under any o