Stay of execution under O.21 R.29 CPC requires extraordinary circumstances and cannot be granted based on ordinary claims without substantial proof.

1. This writ petition is directed against the order dated 8.5.2018 passed by the trial Court rejecting the petitioner's / judgment debtor's application under O.21 R.29 read with S.151 of the Code of Civil Procedure, 1908 (hereinafter called as “CPC”).

2. Mr.B.P.Singh, learned counsel for the petitioner / judgment - debtor, would submit that the order passed by the trial Court is unsustainable and bad in law as present is a fit case where the trial Court ought to have exercised discretion vested in it under O.21 R.29 of the CPC.

3. I have heard learned counsel for the petitioner and perused the impugned order and other documents annexed with the writ petition.

4. In the instant case, the judgment and decree was passed by the trial Court on 2.7.2013. A decree so passed has still not been executed and the petitioner / judgment - debtor has filed this application under O.21 R.29 of the CPC stating that decree passed is not 2 executable as he has filed civil suit for setting aside sale deed dated 30.11.2015/1.12.2015.

5. At this stage, it would be appropriate to notice O.21 R.29 of the CPC, which states as under: -

“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:
Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.”

The jurisdiction to stay execution of decree under O.21 R.29 of the CPC has to be exercised with great care and only in exceptional and extra - ordinary cases as the power to grant stay is discretionary.

6. Though the power to grant stay is discretionary, yet it should be exercised on certain legal principles; so the question for consideration is not whether the Court has got the power to grant stay under O.21 R.29 of the CPC, but the manner in which the Court would ordinarily exercise its discretion vested in it by law.

7. The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of the decree except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off - chance that another suit to set aside the decree might succeed. Such suits are also of very precarious nature. The allegations therein ordinarily would be that previous decree was obtained by fraud or collusion or that the decree was not binding on the present plaintiff as the transaction entered into by the judgment - debtor was tainted with immorality and thus onus being very heavy on the plaintiff to establish fraud and 3 similar charges. That being the position, a person should not be deprived of the fruits of his decree merely because suits of the frivolous character are instituted and litigants are out after further series of litigations. The decree must be allowed to be executed, and unless an extra - ordinary case is made out, no stay should be granted. Even if stay is granted, it must be on suitable terms so that the earlier decree is not stifled. No hard and fast rule can be laid down in what cases stay would be granted or refused. But as has already been stated, a rigorous test is to be applied. The applicability of O.21 R.29 of the CPC cannot be taken lightly and as a matter of right and discretion to exercise the power should be granted only in exceptional and extra - ordinary case made out by the judgmen