( 1. ) FACTS giving rise to the present petition are as follows:

( 2. ) NON-APPLICANT Rambabu obtained an ex parte decree for money against the petitioner Messrs. Khemchand Rajmal through Proprietor Rajmai. The decree was transferred by the Delhi Court to the Court of Civil Judge, Indore within whose jurisdiction the judgment-debtor carried on business. An application was thereupon submitted on behalf of the applicant judgment-debtor under Order 21, rule 29 and Section 151 of the Code of Civil Procedure for stay of execution alleging that prior to the filing of the present execution petition by the non-applicant Rambabu, he had filed Civil Suit No. 40 of 1955 in that Court for accounts on the ground of his being the agent of the applicant which was pending and that according to the applicants estimate he was entitled to recover Rs. 1362/- over and above the amount in execution.

( 3. ) THE trial Court rejected the application on the ground that no sufficient cause had been shown for exercising the discretion in favour of the applicant. The present revision petition is directed against that order.

( 4. ) IT is contended by Mr. Jindal in support, of the petition that the learned lower court had failed to exercise jurisdiction vested in it by law under Order 21, Rule 29 civil Procedure Code for staying the execution in question although all the necessary conditions for its exercise were present. There is according to him a suit pending before the lower Court against the holder of the decree in question and that decree will be deemed to have been passed by that very Court as a result of statutory fiction created under Section 37 of the Civil Procedure Code. Reliance was placed by the learned Counsel upon the decision reported in saradakripa v. Comilla Union Bank Ltd. , AIR 1934 Cal 4 (A), in support of his contention. The questions which arise for consideration are, firstly, assuming that the lower court had jurisdiction to execute the decree, whether it has failed to exercise that jurisdiction or acted illegally or with material irregularity in the exercise of that jurisdiction; and secondly, whether the aforesaid view of the calcutta High Court contains the correct exposition of the law on the point.

( 5. ) THE lower Court in its order appears to have assumed that it had jurisdiction to act in exercise of powers of stay conferred by Order 21, Rule 29 but that the said power was discretionary and that this was not a fit case for the exercise of such a discretion in favour of the applicant. On consideration of the facts of the case it appears to me that this view of the lower Court as regards the impropriety of using the discretionary power under Order 21, Rule 29 in favour of the applicant, is correct. The non-applicant had filed a suit for recovery of the price of the goods supplied by him to the applicant. In the suit which the applicant filed subsequently at indore he claims accounts in respect of his dealings with the non-applicant as his agent for the period which was inclusive of the point of time when his liability in respect of the item in the earlier suit arose. That item according to him is a part of his dealings with the applicant as his agent. He therefore expects that he would be able to adjust the item in execution as against the amount which he would obtain in that suit. There is in my opinion neither any special convenience in staying the execution nor any in justice likely to result if the execution of the decree of the non-applicant were not stayed. In case the decree is executed and the amount in execution recovered, that would at the most be an item in his accounts and if the applicants suit is later decreed the item will get automatically adjusted in that account. Moreover, the view taken by the lower court was a possible judicial view of the matter and it involves neither failure to exercise jurisdiction nor illegality or material irregularity in exercise of its jurisdiction. Since the lower court ass