# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945**
**OP(C) NO. 107 OF 2024**
**IN A.S. NO.25/2018 OF ASSISTANT SESSIONS COURT/PRINCIPAL**
**SUB COURT, KOCHI OS 465/2015 OF PRINCIPAL MUNSIFF COURT , KOCHI**
## **PETITIONER(S)/PETITIONER/JUDGMENT DEBTOR/DEFENDANT:**
ANTONY FREDERIC BAIJU AGED 48 YEARS, S/O PETER, RESIDENT OF VALIAPARAMBIL HOUSE, CHELLANAM VILLAGE, CHELLANAM MURI, CHELLANAM P.O., PIN – 682008. BY ADVS. K.S.BHARATHAN AADITHYAN S.MANNALI ALEENA SONY
## **RESPONDENT(S)/RESPONDENT/DECREE HOLDER/PLAINTIFF:**
TITUS SHYJU S/O PETER, H. NO 4/352, VALIAPARAMBIL HOUSE, CHELLANAM VILLAGE, CHELLANAM MURI, CHELLANAM P.O., PIN – 682008. BY ADVS. G.KRISHNAKUMAR AGNET JARARD(K/1921/2020) VINAY JOHN.A.J(K/1378/2020)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **J U D G M E N T**
**Dated this the 23[rd] day of January, 2024**
**Petitioner is the judgment debtor in E.P.No.27/2021 arising from the judgment and decree in O.S. No.465/2015 of the Principal Munsiff's Court, Kochi. He is aggrieved by Exts.P11, P14 and P16 orders of the learned Munsiff. Ext.P11 order allowed an application preferred by the decree holder to depute an Amin to break open the lock, so as to handover the possession of the subject shop room to the respondent/decree holder. Against Ext.P11 order, a review petition was preferred vide Ext.P12. However, the same was dismissed vide Ext.P14. Simultaneous with the review petition, an application for stay of execution of the decree was also preferred, which was dismissed vide Ext.P16.**
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## **2. Heard the learned counsel for the petitioner/ judgment debtor and the respondent/decree holder.**
**3. Learned counsel for the petitioner submits that the suit which was decreed, O.S.No.465/2015, was preceded by another suit, O.S.No.133/2015, the plaint of which is produced as Ext.P7. It was also pointed out that an order of injunction in recognition of the rights of the petitioner herein was passed, vide Ext.P8. The suit, which was decreed and which is sought to be executed, was filed subsequently. In the fitness of things, an application under Section 10 of the Code of Civil Procedure ought to have been filed, which was not done, with the result, the subsequent suit, O.S.No.465/2015 was decreed, allowing fixation of boundary and directing eviction of the petitioner from the scheduled shop room. Learned counsel submitted that, going by the**
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**provisions of Order XXI, Rule 29 of the Code of Civil Procedure, the execution court was obligated to stay the execution proceedings until a decision is rendered in the suit, O.S.No.133/2015. The requirements in Order XXI, Rule 29 are satisfied, the impact of which is not considered in Exts.P11, P14 and P16 orders. Learned counsel relied upon a three Judges Bench decision of the Hon'ble Supreme Court in** _**Shaukat Hussain @ Ali Akram v. Smt.Bhuneshwari Devi (dead) by Lrs & Ors**_ **. [(1972) 2 SCC 731] in support of his arguments.**
**4. Per contra, the above submissions were seriously opposed by the learned counsel for the respondent. It was urged that all the contentions, which are taken in the first suit, have also been taken in the subsequent suit, which was decreed. The contentions urged by the petitioner herein in the suit stands dismissed and repelled by the trial court, which was**
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**confirmed by the First Appellate Court, as also, by this Court, vide Ext.P4 judgment. It was also submitted that vacant possession of the shop room has already been obtained in execution of the decree and all what remains is the fixation of boundary. Learned counsel would submit that Order XX1, Rule 29 does not enable an automatic stay of the execution proceedings and going by the binding precedents, the court may have to be very cautious and slow in invoking the provisions under Order XXI, Rule 29. It was also brought to the notice of the court that under the guise of Order XXI, Rule 29, the fruits of the decree shall not be denied to the decree holder. Learned counsel relied on the following decisions in this regard: (i)** _**Judhistir Jena v. Surendra Mohanty**_ **[AIR 1969 Ori. 233] (ii)** _**Krishnan Namboodiri v. Unnikrishnan Namboodiri**_ **[1988 (2) KLT 380] (iii)** _**Sreekumary v. Thankappan Pillai**_ **[2023 (6) KHC 76] (iv)** _**Krishna Singh v. Mathura Ahir & Others**_
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**[AIR 1982 SC 686], etc. It is also contended by the learned counsel for the respondent that the impact of Section 11 of the Civil Procedure Code is also liable to be considered, since the suit pending adjudication will be hit by the principles of** _**resjudicata.**_ **Yet another aspect highlighted by the learned counsel for the respondent is that the suit for cancellation of a settlement deed is not maintainable at the instance of a person like the present petitioner, since he is not a party to the said document. A person, who is not party to the document can only seek a declaration, coupled with a relief to set aside the document, as held by this Court in** _**Kamalakshi Amma v. Sangeetha**_ **and Others [2012 (2) KHC 880].**
**5. Having heard the learned counsel appearing on both sides, this Court finds little merit in the contentions urged by the learned counsel for the**
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**petitioner. Primarily, this Court notice that the provisions under Order XXI, Rule 29, employs the expression “may”, in the context of stay of the decree pending decision of the second suit between the parties. The purpose of Order XXI, Rule 29 is to enable adjustments of the claim between the same parties, especially in the context of a decree to be passed in the pending suit. Order XXI, Rule 29 can be applied only if the court is convinced that it is conducive in the interest of both the parties to stay the execution of the decree. As rightly pointed out by the learned counsel for the respondent, the petitioner will have to make out a sufficient cause to seek stay under Order XXI, Rule 29. The petitioner, who embarks on the provision should also establish that there exists fairly arguable questions to be decided in the pending suit. As held by the decision of the Orissa High Court afore referred, the winner of the verdict should not be**
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**deprived of the fruits of the decree, except for good reasons. A Madras High Court decision relied upon by a learned Single Judge of this Court in** _**Krishnan Namboothiri**_ **(supra) holds that, the rule in Order XXI, Rule 29 is not an imperative one, but a matter of discretion, to be exercised in the facts and circumstances of each case.**
**6. Addressing the facts of the instant case, the first suit, which is pending now, seeks to cancel settlement deed in favour of the respondent herein executed by his father. The petitioner and respondent are brothers. The ground under which such challenge is made is that there is some indication, as could be seen from the boundary of the settlement deed sought to be cancelled, that the father intended to execute a similar deed in favour of the petitioner as well, which has not been done. The petitioner also canvassed fraud and even mistake in**
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**executing the settlement deed in favour of the respondent. The instant decree in the subsequent suit is for fixation of boundary and also for surrendering vacant possession in favour of the respondent. It was emphatically argued by the learned counsel for the petitioner that, if the first suit is decreed, the respondent will cease to be the exclusive owner of the property, in which case, surrendering vacant possession in his favour by virtue of the mandate contained in the decree sought to be executed, will prejudice and jeopardize the interest of the petitioner. This Court takes note that the deed, which is sought to be cancelled, is a registered settlement deed, which carries a presumption in its favour, on account of the fact that it is a registered document, unless and until it is cancelled in accordance with law. Therefore, this Court cannot find any infirmity or illegality with the stand taken by the executing court to**
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**proceed with the decree in question, without choosing to allow the stay sought for. This Court also finds that no irreversible situation is going to be created by execution of the decree in question, even assuming the pending suit is decreed in favour of the petitioner. The rights and equities of the parties can be taken care of and considered in the subsequent suit. This Court cannot loose sight of the fact the decree in question has completed all rounds of litigation, including a second appeal before this Court, wherefore, it would be inequitable to ask the decree holder to wait until a a decree is passed in the pending suit, which decree may attain finality only after several rounds of appeal, as permitted by the law.**
**7. Learned counsel for the petitioner submits that the direction in the decree to make payment for use and occupation of the building has already been**
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**effected and a sum of Rs.1,00,000/- has been paid to the respondent herein, the receipt of which the learned counsel for the respondent admits and acknowledges. This fact is recorded.**
**In the result, this Original Petition fails and the same would stand dismissed.**
**Sd/-**
**C. JAYACHANDRAN JUDGE**
Skk//27.01.2024
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## **APPENDIX OF OP(C) NO.107/2024**
## **' - PETITIONER S EXHIBITS:**
|EXHIBIT P1|TRUE COPY OF THE JUDGMENT IN O.S. NO.465|
|---|---|
||OF 2015 ON THE FILES OF PRINCIPAL MUNSIFF|
||COURT, KOCHI DATED 10.01.2018|
|EXHIBIT P2|TRUE COPY OF THE DECREE IN O.S. NO.465 OF|
||2015 ON THE FILES OF PRINCIPAL MUNSIFF|
||COURT, KOCHI DATED 31.01.2018|
|EXHIBIT P3|TRUE COPY OF THE JUDGMENT IN A.S NO.25 OF|
||2018 ON THE FILES OF SUB JUDGE, KOCHI|
||DATED 08.01.2021|
|EXHIBIT P4|TRUE COPY OF THE JUDGMENT IN R.S.A 132 OF|
||2022 OF THE HON'BLE HIGH COURT OF KERALA|
||DATED 17.10.2023|
|EXHIBIT P5|THE TRUE COPY OF THE EXECUTION PETITION|
||FILED BY RESPONDENT IN E.P.NO.27 OF 2021|
||IN O.S. NO.465 OF 2015 ON THE FILES OF|
||PRINCIPAL MUNSIFF COURT, KOCHI DATED|
||19.3.202|
|EXHIBIT P6|TRUE COPY OF THE OBJECTION FILED BY|
||PETITIONER IN E.P.NO.27 OF 2021 IN O.S.|
||NO.465 OF 2015 ON THE FILES OF PRINCIPAL|
||MUNSIFF COURT, KOCHI DATED 06.12.202|
|EXHIBIT P7|A TRUE COPY OF THE PLAINT IN O.S NO.133|
||OF 2015 FILED BY THE PETITIONER DATED|
||16.03.2015 PENDING BEFORE THE ADDITIONAL|
||MUNSIFF'S COURT, KOCHI|
|EXHIBIT P8|A TRUE COPY OF THE ORDER IN I.A NO. 776|
||OF 2015 IN O.S NO.133 OF 2015 FILED BY|
||THE PETITIONER DATED 17.03.2015 PENDING|
||BEFORE THE ADDITIONAL MUNSIFF'S COURT,|
||KOCHI|
|EXHIBIT P9|A TRUE COPY OF THE ORDER IN I.A NO. 237|
||OF 2022 IN O.S NO.133 OF 2015 FILED BY|
||THE PETITIONER DATED 22.11.2023 OF THE|
||ADDITIONAL MUNSIFF'S COURT, KOCHI|
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- EXHIBIT P10 A TRUE COPY OF THE OBJECTION FILED IN E.A 286 OF 2023 IN EP NO. 27/2021 IN OS NO.465 OF 2015 DATED NIL
- EXHIBIT P11 A TRUE COPY OF THE ORDER IN E.A 286 OF 2023 IN EP NO. 27/2021 IN OS NO.465 OF 2015 DATED 13.12.2023 OF THE HON'BLE PRINCIPAL MUNSIFF'S COURT, KOCHI
- EXHIBIT P12 A TRUE COPY OF THE E.A 332 OF 2023 IN EA 286/23 IN EP NO. 27/2021 IN OS NO.465 OF 2015 FILED BEFORE THE HON'BLE PRINCIPAL MUNSIFF'S COURT , KOCHI DATED 22.12.2023
- EXHIBIT P13 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXHIBIT P12 DATED 08.01.2024
- EXHIBIT P14 A TRUE COPY OF THE ORDER IN E.A 332 OF 2023 IN EP NO. 27/2021 IN OS NO.465 OF 2015 DATED 10.01.2024 OF THE HON'BLE PRINCIPAL MUNSIFF'S COURT, KOCHI
- EXHIBIT P15 A TRUE COPY OF THE E.A 333 OF 2023 IN EP NO.27/2021 IN OS NO. 465 OF 2015 DATED 22.12.2023 OF THE HON'BLE PRINCIPAL MUNSIFF'S COURT, KOCHI
- EXHIBIT P16 A TRUE COPY OF THE ORDER IN E.A 333 OF 2023 IN EP NO.27/2021 IN OS NO. 465 OF 2015 DATED 10.01.2024 ON THE FILES OF THE HON'BLE PRINCIPAL MUNSIFF'S COURT, KOCHI
- EXHIBIT P17 THE TRUE COPY OF THE PROCEEDINGS IN EP 27 OF 2021 IN O.S 465 OF 2015 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT, KOCHI DATED 02.8.2022
