S.K. Jha J. - (1.) This application is directed against the order dated 2.12.1982 passed by the Munsif, East Muzaffarpur in Misc. Case No. 8/82. The aforesaid Misc. Case arose out of Money Suit No. 101/79 which was decreed ex -parte. By the impugned order the court below has rejected the prayer of the petitioner for staying further proceedings in the execution case which has been registered as Execution Case No. 1/82 pending in the court of Special Execution Munsif . The application filed by the petitioner was labelled as one under Order 21 Rule 29 read with Sec. 151 of the Code of Civil Procedure (hereinafter referred to as the Code). The court below has rejected the prayer for stay merely on the ground that any order of stay, if passed shall delay the execution case. I, for one, cannot understand the implication thereof. The prayer of stay is always made for the purpose of staying certain proceedings in the court and any stay if granted inevitably attracts the delay in disposal of a case. The order of stay will cause further delay in the execution case is no ground for refusal of the stay. The order has, therefore, erroneously been passed by the learned Munsif affecting a jurisdictional error. Here a short narration of some other facts is necessary in order to amplify the provisions of Order 21 Rule 29 of the Code and the implication of Sec. 144 thereof. As already stated above, an ex -parte decree was passed against the petitioner. Thereafter his moveable properties were attached and put in the court malkhana. An execution case was levied which has already been mentioned earlier. When the petitioner came to know about the ex -parte decree having been passed against him he filed an application for setting aside ex -parte decree under Order 9 Rule 13 of the Code. That gave rise to Misc. Case No. 8/82 with which were (are seized ) (sic) in this case. Perhaps, under a wrong legal advice the application was labelled as one under Order 21 Rule 29 of the Code read with Sec. 151 thereof. As a matter of fact, on a plain reading of the provision of Order 21 Rule 29 of the Code that provisions is not applicable to the facts of the present case. Order 21 Rule 29 reads thus : - - 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...... Therefore, manifestly this statutory provision applies only to a suit which is pending in the court. In the instant case no suit is pending in any court. All that is pending is an application for setting aside ex -parte decree under Order 9 Rule 13 of the Code which cannot be equated with a suit pending in any court. The application was, therefore, mislabeled as one under Order 21 Rule 29 of the Code.
(2.) Learned Counsel for the opposite party tried to persuade me to hold that in case the application under Order 9 Rule 13 is allowed and the ex -parte decree is set aside, recourse may be taken by the petitioner to the provisions of Sec. 144 of the Code. This contention is absolutely misconceived. Sec. 144 (1) of the Code reads thus : Where as in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for, the purpose, the Court which passed the decree or the order shall....... This puts the parties in the same position as if the decree had not been passed. Here again it is to be highlighted that the decree under challenge must be varied or reversed in any appeal or revision or other proceeding or is set aside or modified in any suit instituted for the purpose. In the instant case there is no appeal, there is no revision, there is no suit to set aside or modify the ex -parte decree in any suit instituted for the purpose. Therefore, the provisions of Sec. 144 (1) of the Code have no application. Assuming, however, that the term "or other proceeding" relates to a proceeding covered by Order 9 Rule 13 of the Code and the decree is not set aside what shall the petitioner get if his properties are already sold in execution of the decree and from whom ? Because it is not a foregone conclusion that the decree holder himself will be a purchaser, in order to recover the property, therefore, he will have to institute a fresh suit against the auction purchase. Do law and equity demand this ? In my view certainly not. It is, therefore, that it has been repeatedly held both by the Judicial Committee of the Privy Council as well as by the Supreme Court that the Code is not an exhaustive Code and could not conceivably be so because if it is held to be self contained, more often than not justice will be denied to persons who want justice in accordance with law. It is, therefore, that Sec. 151 of the Code has been inserted to fill up any lacuna in the procedural law as embodied in the Code. The instant case is one of those cases which is clearly covered by Sec. 151 of the Code because I do not find any other provision to which resort may be taken by the petitioner for the redressal of his grievances, if ultimately found to be justified and warranted by law.
(3.) The court below, therefore, ought to have resorted to its jurisdiction under Sec. 151 of the Code and ought to have granted the stay of the execution proceeding pending the final disposal of the application under Order 9 Rule 13 of the Code registered as Misc No. 8/82 as aforementioned. The most that can be done in favour of the opposite party is to direct the court below to dispose of the application for setting aside the ex -parte decree as early as possible. If the petitioner ultimately loses, the law shall take its own course. But if he succeeds justices will be denied to him by refusing to grant stay during that period. The sooner the Misc. Case is disposed of the better for all the parties concerned.;