S.M. NAGORI Vs. BABURAO
LAWS(MPH)-1955-10-13
HIGH COURT OF MADHYA PRADESH
Decided on October 06,1955

S.M. Nagori Appellant
VERSUS
BABURAO Respondents

JUDGEMENT

Chaturvedi, J. - (1.) THE applicant in this revision is the Defendant against whom a suit was brought for possession and for mesne profits in the Court of Munsiff, Indore. It was in connection with certain document that a dispute arose and the matter reached the High Court in second appeal. This Court remanded the case back for redecision and awarded costs incurred so far to the Defendant. The case then began before the City Civil Judge again. In the same Court the Defendant filed an application for execution of the decree of costs awarded by the High Court. The opponent filed an application before the Additional City Civil Judge under Order 21 Rule 29, Code of Civil Procedure for the stay of execution of the decree of costs pending the decision of the suit. On the condition that security would be furnished, the learned Additional City Civil Judge has allowed the application, and it is against this order that the present Petitioner has come in revision.
(2.) THE main point urged in this revision by Mr. Newaskar, learned Counsel for the Petitioner, is that the Additional City Civil Judge had no jurisdiction to entertain the application and pass order under Order 21 Rule 29, Code of Civil Procedure. Order 21 Rule 29, Code of Civil Procedure runs as follows: Where a suit is pending in any Court against the holder of a decree of 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.
(3.) THE first objection of Mr. Newaskar is that the Rule applies only if a suit is pending in the Court against the holder of a decree of this Court. But the decree of costs is passed by the High Court and not by the Court before whom the decree is being executed. In my opinion there is no substance in this contention as it overlooks the provisions embodied in Section 37, Code of Civil Procedure which lay down that the expression "Court which passed the decree" or words to that effect, shall be deemed to include, where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of the first instance.;


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