B. D. Agarwal, J. - (1.) THIS revision is directed against an order of the Second Additional Civil Judge, Varanasi dated September 20, 1983.
(2.) THE dispute relates to a house situate in Varanasi city. THE house belongs to Sudarshan Mukherji (hereinafter referred to as the owner). On May 25, 1970 the owner allegedly entered into an agreement to sell this house in favour of the opposite party for a consideration of Rs. 40,000/-of which a sum of Rs. 4,000/- was received as earnest. An agreement was entered into by the owner thereafter on July 31, 1970 with the revisionist whereby he stipulated to sell this house to him for Rs. 43,000/- and obtained Rs. 5000/- as earnest. THE sale was to be executed within six months of the agreement. This period was extended from time to time until May 5, 1973. On May 24, 1973 the owner executed sale of the house in favour of one Shyam Sunder Khemka described hereinafter as the subsequent vendee. THE revisionist instituted Original Suit No. 78 of 1973 in the court of the Civil Judge, Varanasi for specific performance of the agreement dated July 31, 1970 against the owner and the subsequent vendee. THE trial court decreed the suit on June 1, 1974 for refund of the earnest money, but not for specific performance. THE revisionist filed First Appeal No. 103 of 1973 in this Court which was allowed on September 13, 1978 and decree was passed in favour of the revisionist for specific performance of the agreement against the owner and the subsequent vendee above mentioned. A special Leave Petition filed in the Supreme Court against this decision was dismissed. THE opposite party instituted Original Suit No. 56 of 1981 against the owner, the subsequent vendee and the revisionist seeking the relief of specific performance of the agreement claimed to be entered into on May 25, 1970. This suit was decreed on May 18, 1982, by the First Civil Judge, Varanasi against the owner and the subsequent vendee directing them to execute the sale in favour of the opposite party. THE revisionist has filed First Appeal No. 388 of 1982 against this decree of the trial court. In this appeal there was an ad-interim order made on July 26, 1982, on the application of the revisionist to the effect that the execution of the deed of sale in favour of the opposite party shall remain stayed pending disposal of this appeal. THE revisionist has moved an application in execution with respect to the decree obtained by him in Original Suit No. 78 of 1973. THE execution is registered as No. 4 of 1979. It was instituted in the court of the Civil Judge, Varanasi, but upon the application made by the opp. party under section 24 of the Code of Civil Procedure, this has been transferred to the court of the Second Additional Civil Judge, Varanasi. THE opposite party applied on September 14, 1983 for this execution being stayed under Order 21, rule 29, read with section 151, CPC. Under the impugned order the court below has directed stay of the execution pending decision in First Appeal No. 388 of 1982, aforementioned. Aggrieved against the order dated September 20, 1983 the decree holder in Original Suit No. 78 has preferred this revision. The opposite party has made an application to vacate the interim stay granted to the revisionist in capacity as the appellant in First Appeal No. 388 of 1982 on July 26, 1982. With the consent of the counsel for the parties, this revision and the application for vacation of the aforementioned interim stay in the First Appeal have been heard together. Sri V. K. S. Chaudhary, learned counsel for the opposite party, raised a preliminary objection that revision against the impugned order does not lie under section 115, CPC as amended in Uttar Pradesh. The argument is that there is no case decided. It was submitted that the lower court had directed the matter to be put up on November 19, 1983 and, therefore, the stay granted was only interim. I am unable to agree. The court below has under this order stayed proceeding in Execution Case No. 4 of 1979 for so long as the First Appeal No. 388 of 1982 arising from Original Suit No. 56 of 1981 is not decided. The revisionist claims that having obtained decree in Original Suit No. 78 of 1973, which has become final, he is entitled to the fruits thereof. The impugned order obstructs him in the exercise of this right. This cannot, therefore, be legitimately claimed to be an interlocutory order. It is not material that this order by itself does not dispose of either way the execution proceeding. That is not the required test. The crucial fact is that the impugned order does affect adversely the right of the decree holder revisionist to proceed in execution. That makes this a case decided in my opinion applying the criteria laid by the Supreme Court in Major S. S. Khanna v. Brig F. J. Dillon, (1964) 4 SCR 409 and Baldeodas Shivlal v. Filmistan Distributors (India) Pvt. ltd., AIR 1970 SC 406.
(3.) UPON merit, Rule 29, Order 21, CPC, as amended by this Court with effect from June 1, 1957, read as under :- " 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 or any person whose interests are affected by the decree, or by any order made in execution thereof, the court may, if it thinks fit stay execution of the decree until the pending suit has been decided. Provided that in all cases where execution of the decree is stayed under this rule the court shall require the person seeking such stay to furnish such security as it may deem fit. " With effect from February 1, 1977, the text of this Rule 29 in original, as amended by the Code of Civil Procedure (Amendment) Act, 1976, would read as follows :- " 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 the security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided. Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, records its reasons for so doing. " ;