##PAGE1##

1 MP-2965-2021

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE VIVEK JAIN

th

ON THE 28 OF JANUARY, 2026

MISC. PETITION No. 2965 of 2021

TORAN SINGH AND OTHERS

Versus

DEVEENDR PATEL

Appearance:

Shri Pradeep Kumar Bhargava & Shri Rajesh Kumar Patel-Advocates

for the petitioners.

Shri Sanjay Sarwate-Advocate for the respondent.

ORDER

The present position has been filed challenging the order passed by the

Executing Court dated 04.02.2020, thereby the Executing Court has rejected

the application for stay of execution proceedings under Order 21 Rule 26 and

29 CPC and has decided to proceed ahead with the execution

proceedings. This court, while entertaining the petition, had stayed the

execution proceedings and the said stay is prevailing since 21.10.2021.

2. It is vehemently contended by the counsel for the petitioners/

judgment debtors that there is a decree for specific performance in favour of

the respondent, and the said decree was passed on 29.02.2016, but the

present petitioners/ judgment debtors have already filed a suit before the civil

court for setting aside the said judgment and decree, and the said suit has

been registered as RCSA No. 68 of 2019 and therefore, once the subsequent

Signature Not Verified

Signed by: ARVIND KUMAR

MISHRA

Signing time: 31-01-2026

13:42:30

2 MP-2965-2021

suit is pending between the same parties which is filed by the judgment

debtors against the decree holder, therefore by exercising jurisdiction under

Order 21, Rule 26 and 29 CPC, the executing court ought to have stayed the

execution of decree of specific performance, because the provisions of Order

21 Rule 26 and 29 are mandatory in nature.

3. The learned counsel for the petitioners has further argued that

recently the petitioners/judgment debtors have also filed an application for

review of the judgment and decree dated 29.02.2016 which has been filed on

11-11-2025 which is also pending and therefore, once subsequent suit is

pending and a review petition against the original judgment and decree is

also pending, therefore the proceeding for execution be stayed.

4. Per contra, learned counsel for the respondents-decree holder has

argued that the law cannot stop any person from filing successive suits and

review petitions, and mechanical stay cannot be granted on execution

proceedings. It is argued that this case was not a fit case to grant stay on

execution proceedings, and therefore the executing court has not erred in

rejecting the application under Order 21 Rule 26 and 29 CPC.

5. Heard learned counsel for the the parties and perused the record.

6. In the present case the petitioners seek benefit of Order 21, Rule

29 CPC on the ground that their review petition against the original

judgment and decree is pending as well as their subsequent suit is

pending. During course of argument, another point was pressed that the

petitioners want to refund the amount of advance, though it was admitted

that the decree is not for refund of amount of advance, but it is for specific

Signature Not Verified

Signed by: ARVIND KUMAR

MISHRA

Signing time: 31-01-2026

13:42:30

3 MP-2965-2021

performance. Therefore this court does not deal with that assertion, as no

assertion going behind the decree can be considered in these proceedings.

7. The suit was decreed on 29-02-2016 and the execution

proceedings were instituted in the year 2017 while the subsequent suit has

admittedly been filed by the petitioners/ judgment debtors in June 2019.The

subsequent suit is for cancellation of judgment and decree dated 29.02.2016

and admittedly no appeal against the judgment and decree has been filed by

the judgment debtors. Even the suit for cancellation of judgment and decree

dated 29.02.2016 has been filed more than 3 years after passing of the

judgment and decree, which is even almost 2 years after filing of the

execution proceedings.

8. The jurisdiction under Order 21 Rule 26 and 29 is not mandatory

in nature and the Executing Court is not bound mechanically to stay the

execution on filing o