IMPORTANT POINT
Stay of execution proceeding – Judgment and decree obtained by sole respondent in Eviction Suit cannot be denied on the ground of pendency of partition suit which is not pursued by petitioner.

JUDGMENT (ORAL)

The present application has been filed for quashing the order dated 10.06.2013 passed by the Sub-Judge-I, Munger in Eviction Execution Case No. 08 of 2010, by which the petition dated 22.03.2013 filed by the petitioner under Order XXI Rule 29 of the Civil Procedure Code for staying the proceeding of execution case has been dismissed.

2. The facts of this case are that the respondent had filed Eviction Suit No.03 of 1995 against the present petitioner for a decree of eviction from the suit premises mentioned in Schedule-II of the plaint and also to hand-over the possession of the said suit premises to the respondent. In the plaint, the plaintiff stated that he is the owner of the suit premises and the defendant is the tenant in the suit premises on monthly rent of Rs. 300/- on a fixed term. The aforesaid suit was decreed on contest in favour of the respondent-plaintiff vide judgment dated 15.06.2006 and decree dated 22.06.2006 with a direction to the defendant to vacate the suit premises within a month failing which the plaintiff shall be at liberty to get the premises vacated and delivery of possession over the same through the process of the Court. The defendant was also directed to give compensation for damages to the plaintiff at the rate of Rs. 300/- per month as well as arrears of rent. Against the aforesaid judgment and decree, the petitioner-original defendant filed an appeal viz. S.E.A. No.01 of 2006. During the pendency of the aforesaid appeal, the respondent/decree holder filed Eviction Execution Case No.08 of 2010 under Order XXI Rule 15 of the Code for execution of the judgment and decree passed in Eviction Suit No. 03 of 1995. In the said execution case, the petitioner filed a rejoinder dated 27.09.2011. By an order dated 08.09.2011, the SEA No. 01 of 2006 was dismissed for default. Thereafter, the petitioner filed Misc. Case No.03 of 2011 for re- admission of the aforesaid appeal which was admitted vide order dated 23.09.2011.

3. It is the case of the petitioner that Title Suit No.38 of 1998 is pending before the Sub Judge-I, Munger i.e. same Court in which the land in the execution case is also included. The petitioner filed a petition dated 22.03.2013 in Eviction Execution Case No.08 of 2010 for staying the proceeding of the execution case till the disposal of the Title Suit No.38 of 1998, which has been rejected by the learned Sub- Judge-I, Munger by the impugned order dated 10.06.2013. Hence, this writ petition.

4. Learned counsel for the petitioner submits that the Court below has committed an error in dismissing the petition filed by the petitioner for staying the proceeding of the Execution Case No. 08 of 2010 on technical ground. The Court below has failed to appreciate the fact that the Title Suit No.38 of 1998 is still pending regarding the suit property and unless and until it is decided, the execution of judgment and decree for evicting the petitioners from the suit property cannot be done.

5. Learned counsel for the petitioner further submits that the Court below has rejected the petition of the petitioner only on the ground that in the eviction appeal preferred by him, a petition for stay under order XLI Rule 5 was rejected. He further submits that the parties claimed title over the land in question through a common ancestor and the petitioner is the co-sharer of the suit property as being member of joint family.

6. The sole respondent has appeared and filed his counter affidavit and has opposed the application by relying on the judgment of Krishna Singh vs. Mathura Ahir & Ors. reported in AIR 1982 SC 686 and has submitted that executing Court has got no jurisdiction to go beyond the decree and if a decree is executed and ultimately the petitioner succeeds in the partition suit then he can get recovery of possession but the decree holder cannot be debarred from executing the judgment and decree. He has also relied upon a decision of this Court in the case of Khurdeni Mistri vs. Satend