Louis Mary, Anthony Pavil Raj and Joseph Amal Raj v. Paval, Anthoni Ammal, Mary Juminal, Francis, Martin Anthoniraj, Hridayamary, Peetar, Sahayalath a and Arkathammal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA,** ## **1943** ## **CRP NO. 239 OF 2021** ## **OS 40/1974 OF PRINCIPAL MUNSIFF COURT, PALAKKAD** ## **REVISION PETITIONER/S:** 1 LOUIS MARY AGED 85 YEARS W/O.LATE MICHAEL RAJ, RESIDING AT PAMPAMPALLAM, PUDUSSERY, PALAKKAD. 2 ANTHONY PAVIL RAJ AGED 59 YEARS S/O.LATE MICHEAL RAJ, RESIDING AT PAMPAMPALLAM, PUDUSSERY, PALAKKAD. 3 JOSEPH AMAL RAJ AGED 58 YEARS S/O.LATE MICHEAL RAJ, RESIDING AT PAMPAMPALLAM, PUDUSSERY, PALAKKAD. BY ADVS. RAJESH SIVARAMANKUTTY K.VIJINA ARUL MURALIDHARAN ## **RESPONDENT/S:** 1 PAVAL AGED 70 YEARS S/O.SELVAMUTHU, MANGALAM CHALLA, PAMPAMPALLAM, PUDUSSERY EAST, PALAKKAD, PIN - 687 621. 2 ANTHONI AMMAL D/O.SELVAMUTHU, AGE NOT KNOWN, MANGALAM CHALLA, PAMPAMPALLAM, PUDUSSERY EAST, PALAKKAD, PIN - 678 621. 3 MARY JUMINAL D/O.SELVAMUTHU, AGE NOT KNOW, MANGALAM CHALLA, PAMPAMPALLAM, PUDUSSERY EAST, PALAKKAD, PIN678 621. 4 FRANCIS S/O.SELVAMUTHU, AGE NOT KNOWN, MANGALAM CHALLA, PAMPAMPALLAM, PUDUSSERY EAST, PALAKKAD, PIN678 621. CRP No.239 of 2021 -2- - 5 MARTIN ANTHONIRAJ S/O.SELVAMUTHU, AGE NOT KNOWN, MANGALAM CHALLA, PAMPAMPALLAM, PUDUSSERY EAST, PALAKKAD, PIN - 678621. - 6 HRIDAYAMARY W/O.LATE ANTHONIRAJ, AGE NOT KNOWN, CANALPIRIVU, MANGALATHANCHALLA, PALAKKAD, PIN - 678 621. - 7 PEETAR S/O.LATE ANTHONIRAJ, AGE NOT KNOWN, CANALPIRIVU, MANGALATHANCHALL, PALAKKAD, PIN - 678621. - 8 SAHAYALATHA D/O.LATE ANTHONIRAJ, AGE NOT KNOWN, CANALPIRIVU, MANGALATHANCHALLA, PALAKKAD, PIN - 678 621. - 9 ARKATHAMMAL W/O.SUBRAMANYAN, AGE NOT KNOWN, CANALPIRIVU, MANGALATHANCHALLA, PALAKKAD, PIN - 678 621 (R-1 ARRYAED IN THE IMPUGNED ORDER, IS NO MORE AND HENCE NOT IMPLEADED HEREIN). BY ADVS. SARATH M.S. B.PREMNATH (E) **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/8/2021, THE COURT ON 09.11.2021 DELIVERED THE FOLLOWING:** CRP No.239 of 2021 -3- ## **ORDER** Dated this the 9[th] day of November, 2021 **The revision petitioners are some of the judgment debtors in E.P.No.334 of 2011 in O.S.No.40 of 1974 of the Principal Munsiff's Court, Palakkad and are aggrieved by the dismissal of their application (E.A.No.99 of 2020), seeking stay of the execution proceedings filed under Order XXI Rule 29 of CPC. The essential facts are as under;** **E.P.No.334 of 2011 is filed for executing the final decree for partition in O.S.No.40 of 1974. The final decree was passed by the trial court based on a compromise arrived between the sharers. The judgment and decree was challenged up to the second appeal stage, by certain persons claiming to be the assignees of some of the shares. The second appeals were disposed of, confirming the final decree and recording the** CRP No.239 of 2021 -4- **submission that the properties sold to the appellants therein, is set apart to the shares of those sharers, who had sold the properties to the appellants. Further, the trial court was directed to ensure that the properties thus set apart are allowed to be taken possession of by the appellants, in the final decree proceedings itself. In the second appeals (SA No.892 of 1995 and connected cases), the petitioners had been arrayed as respondents 16 to 18.** **2. Before the execution court, the petitioners filed a petition under Order XX1 Rule 58 CPC claiming to be in possession of a portion of the decree schedule property, on the strength of a purchase certificate obtained by their father and an agreement for sale entered into with some of the sharers. The claim petition, as also the appeals filed against that order, were dismissed. Thereupon, the petitioners filed O.S.No.139 of 2020 before the Additional** CRP No.239 of 2021 -5- **Munsiff's Court, Palakkad seeking permanent prohibitory injunction against the defendants/decree holders in O.S.No.40 of 1974. Simultaneously, E.A.No.99 of 2020 was filed before the execution court, seeking stay of the proceedings under Order 21 Rule 29. The petitioners contended that they were not aware of the compromise decree in O.S.No.40 of 1974, which the respondents refuted by submitting that the petitioners were impleaded as parties in the final decree proceedings and that, in spite of being served with notice, they had not filed objection to the execution petition. Moreover, the claim petition filed by the petitioners was dismissed and that order had attained finality.** **3. The exercise of power under Order XXI Rule 29 being the legal question involved, the provision is extracted here under;** _**“29. Stay of execution pending suit between decree-holder and judgment-debtors.— Where a suit is pending in any Court against**_ CRP No.239 of 2021 -6- _**the holder of a decree of such Court 2[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 :**_ _**[Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.]”**_ **On a plain reading of the provision, it is evident that in order to stay the execution of a decree, the person against whom a decree is passed must have filed a suit against the holder of that decree and that suit, as well as the execution proceedings at the instance of the holder of the decree, should be pending before the same court. In** _**Sri Krishna Singh v. Mathura Ahir [(1981) 4 SCC 421**_ **], the Honourable Supreme Court has held that the jurisdiction to stay execution proceedings by exercising the power under Order XXI Rule 29 is vested only in the court which passed the decree. The Apex Court has also sounded a word of caution by observing that** CRP No.239 of 2021 -7- **the power under Order XXI Rule 29 has to be exercised with great care and only in special circumstances. In the instant case, the decree is being executed before the Principal Munsiff's Court and the suit is pending before the Additional Munsiff's Court. Being so, the requirement that the execution proceedings and the suit should be pending before the same court, is not satisfied.** **4. The other requirement is that the suit should be filed by the person against whom the decree was passed. The pleadings reveal that the petitioners were not parties to the suit (O.S.No.40 of 1974) and were impleaded only in the final decree proceedings. As such, the petitioners do not fall within the meaning of the words 'person against whom the decree was passed'. The essential conditions for invoking the power nuder Order XXI Rule 29 being absent, the court below was fully justified in dismissing** CRP No.239 of 2021 -8- **the application. The contention of the respondents that the suit is barred by** _**res judicata**_ **, the petitioners being parties to the final decree proceedings and the second appeals, being an issue to be decided by the trial court, is left unanswered.** **In the result, the civil revision petition is dismissed.** ## **Sd/-** **V.G.ARUN JUDGE** Scl/