BHAWANI SAHAY Vs. MT. SUGANDHO

JUDGEMENT

(1.) THIS is a revision application against the order of the lower Court passed in Civil Suit No. 768 of 49 staying under Order 21, Rule 29 the execution proceedings of a decree pending in the Court of City Civil Judge, Lashkar. One Ganesh Ram, who is now dead and whose legal representative Musammat Sugandho is the non -applicant in the petition before me, filed a suit for partition against Bhawani Sahay on 17 -12 -49 in the Court of Sub -Judge, Lashkar. In the re -organisation of the Courts that took place in 1948, the Court of Sub -Judge was replaced by the Court of City Civil Judge, First Class, Lashkar and the Plaintiff's suit is now pending in the Court of City Civil Judge, Lashkar. At present, suits up to the valuation of Rs. 200/ - instituted in the Court of City Civil Judge, Lashkar are being tried by Mr. Ram Krishan Gupta as Additional Civil Judge, Lashkar. Mr. Gupta is also the Civil Judge, First Class, Gwalior. But he is trying the suit out of which this revision petition arises as Additional City Civil Judge, Lashkar. On 4 -11 -47, the Defendant in the suit Bhawani Sahay had obtained from the Gwalior State Judicial Committee a decree in his favour and against Ganesh Ram for demolition of a wall alleged to have been constructed by Ganesh Ram on a piece of land jointly owned by him and Bhawani Sahay. The suit, in which the Gwalior Judicial Committee, in the exercise of its revisional powers, passed the decree, was also instituted in the Court of Sub -Judge, Gwalior. The execution proceedings of that decree were started by Bhawani Sahay, the decree -holder, on 1 -12 -49 in the Court of City Civil Judge, Lashka These execution proceedings were stayed by the order of the lower Court which is under revision.

(2.) LEARNED Counsel for the applicant contends that Order 21, Rule 29 has no applicability to the present case as the Court in which the Plaintiff non -applicant has sued, is not the Court which had passed the decree in favour of the Petitioner and that in any case the order staying the execution of the decree can only be made by the Court in the execution proceedings and not in the suit proceedings.

(3.) AS to the contention of the Petitioner that the application for stay of execution decree ought to have been made not to the Court of Additional City Civil Judge in which the suit is pending, but ought to have been made to the Court of City Civil Judge, Lashkar in which the execution proceedings are pending, I think on a plain reading of Order 21, Rule 29, it is clear that it is the Court in which the suit is pending that has jurisdiction to pass an order under Order 21, Rule 29. It is true that Rule 29 is one of the rules of Order 21 which deals with the execution of decree and order. But this fact alone cannot, in my opinion justify the conclusion that under this rule, the stay of the execution of a decree can be ordered only by the Court executing the decree. There is no indication whatsoever in the rule itself that the application for stay of execution must be made to the Court in execution proceedings. On the other hand, it is clear from the wording of Rule 29 that it is the Court in which the suit is pending that has jurisdiction to stay execution of the decree. I am aware of the decisions in the cases of - 'O. Steel and Co. v. Ichchamoyi', 13 Cal 111(A); - 'Lingum Krishna v. K. Sivaramayya', 20 Mad 366 (B); - 'Mahesh Chandra v. Jogendralal' : AIR 1928 Cal 222 (C) in which an application under Order 21, Rule 29 was made to the Court in execution proceedings and it was held that an appeal lay against the order of stay passed in execution proceedings. The point before me did not arise in those cases, which cannot for that reason be regarded as authorities to support the view that an application under Order 21, Rule 29 must be made to the Court in the execution proceedings. On the other hand in the case of - 'Narsidas v. Manahar Singh' : AIR 1931 Bom 247(D), the question, whether under Order 21, Rule 29 an application for the stay of execution of a decree must be made in the execution proceedings or in the suit proceedings, was considered and it was held by a Division Bench of the Bombay High Court that the Court in which the suit is pending has jurisdiction to pass an order under that Rule. I think, therefore, that Mr. Gupta before whom the Plaintiff non -applicant's suit is pending had jurisdiction to pass the order staying the execution of the decree.