MAHESH CHANDRA SADHU Vs. JOGENDRA LAL SARKAR

JUDGEMENT

(1.) The determination of this appeal depends upon the true construction of Order 21, Rule 29, Civil P.C. The question raised is one of first impression, for in none of the High Courts in India does it appear to have been considered or decided. Order 21, Rule 29 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.

(2.) The question to be determined is whether the words "until the pending suit has been decided" mean until a decree has been passed by the Court in which the suit is pending, or until the claim in the pending suit has finally been determined. The material facts are not in dispute.

(3.) The present appellants or their predecessors-in-title obtained a decree in the Court of the Subordinate Judge of Asansole against the respondent for Rs. 10,939-14-0 and costs on the 22 March, 1915. This decree was affirmed on appeal to the High Court on 14 January 1918. On the 18 April 1925 the appellants applied to the Subordinate Judge of Asansole for execution of the decree which they had obtained in the High Court on 14 January 1918 to <JGN>Page</JGN> 2 of 4 the extent to which it had not already been satisfied. On the 29 August 1925, the learned Subordinate Judge of Asansole dismissed the appellants application upon the ground that it was barred by limitation. Against this order the appellant decree-holders have preferred the present appeal. The appeal is supported upon two grounds : (1) that the present application for execution must be treated as a continuation of a previous execution case (No. 101 of 1919); (ii) that an order under Order 21, Rule 29 staying the execution of the decree of 14th January 1918 had been passed by the learned Subordinate Judge of Asansole on the 14 April 1920; that the stay order remained in force until the 24 November 1924; and that, if the time during which the execution of the appellants decree was stayed was excluded from the period during which limitation would run, the application for execution of the 18 April 1925 was not time barred.