SREEKUMARY v. THANKAPPAN PILLAI and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945** **OP(C) NO. 2287 OF 2021** **AGAINST THE ORDER DATED 19/11/2021 IN E.A.NO.103/21 IN EP 90/2012 IN OS 456/2010 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA** ## **PETITIONER/PETITIONER:** SREEKUMARY AGED 61 YEARS W/O. P G. BABU, THAYANKARI VEEDU, KAKKAZHAM MURI OF AMBALAPPUZHA NORTH VILLAGE, ALAPPUZHA. BY ADVS. K.S.HARIHARAPUTHRAN BHANU THILAK **RESPONDENTS/COUNTER PETITIONERS:** 1 THANKAPPAN PILLAI AGED 75 YEARS S/O.THAMPI, KAMALALAYAM, THOTTAPPALLY MURI OF AMBALAPPUZHA, ALAPPUZHA - 688563. 2 REMADEVI AGED 70 YEARS W/O.LATE UNNIKRISHNAPANICKER, KRISHNALAYAM, KOMANA, AMBALAPPUZHA, NOW RESIDING AT KALLITTAPURACKAL, MUHAMMA P. O., ALAPPUZHA - 688523. 3 MEENA KRISHNAN AGED 39 YEARS D/O.LATE UNNIKRISHNAPANICKER, KRISHNALAYAM, KOMANA, AMBALAPPUZHA, NOW RESIDING AT KALLITTAPURACKAL, MUHAMMA P. O., ALAPPUZHA - 688523. 4 MURALI KRISHNAN AGED 39 YEARS S/O.LATE UNNIKRISHNAPANICKER, KRISHNALAYAM, KOMANA, AMBALAPPUZHA, NOW RESIDING AT KALLITTAPURACKAL, MUHAMMA P. O., ALAPPUZHA - 688523. BY ADV R.AZAD BABU THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) NO. 2287 OF 2021 2** ## **CR** ## **JUDGMENT** An application to stay the execution proceedings under Order XXI Rule 29 C.P.C. was dismissed by the execution court under Ext.P3 order, against which, the judgment-debtor came up by relying on the legal position rendered by this Court in **Arun Pavalin v. Rajan Achary (1998 (2) KLT 670)** and **Abdul Samad v. Nahakhan (2020 KHC 688 : 2021 (2) KLT 533)** . 2. The power to stay execution under this Rule is purely discretionary and the discretion can be exercised by striking a balance not to defeat the execution proceedings and to avoid miscarriage of justice on a defective decree. Hence, utmost bonafides for the second suit alone would entitle the party to avail the benefit of stay of the execution of earlier decree. Rule 29 of Order XXI C.P.C. is in fact precautionary in nature so as to avoid miscarriage and failure of justice based on a defective decree. When there is no question of ## **OP(C) NO. 2287 OF 2021 3** miscarriage or failure of justice on account of any defect in the decree by virtue of any incompetency or lack of jurisdiction or any other sufficient ground, the matter would not come under the purview of Order XXI Rule 29 C.P.C. Utmost care and caution is required while granting an order of stay under Rule 29 of Order XXI C.P.C. and it cannot be granted in a routine way simply on satisfying the two limbs of Rule 29 of Order XXI C.P.C., that is, (1) A proceeding in execution of the decree of that Court started at the instance of the decree-holder against the judgment-debtor and (2) A suit at the instance of the same judgment-debtor against the holder of the decree of that Court. These are the two requirements in order to attract the application of Order XXI Rule 29 C.P.C. as laid down by the Apex Court in **Shaukat Hussain alia Ali Akram and Others v. Smt. Bhuneshwari Devi (dead) by Lrs. and Others** **[(1972) 2 SCC 731]** . A pendente lite transferee who would stand bound by the decree sought to be executed by virtue of Section 52 of the Transfer of ## **OP(C) NO. 2287 OF 2021 4** Property Act can also step into the shoes of judgment-debtor as a person litigating under him. But to exercise the jurisdiction under that Rule by granting stay of execution, the court must be satisfied of the bonafides for the second suit and existence of a debatable prima facie case which would affect or take away the very decree which is sought to be executed against the judgment-debtor. The material point to be looked into is that the second suit must be by the judgment-debtor or any person claiming under him against the earlier decree sought to be executed. That mandate itself carries the danger of being entangled in repeated litigation and multiplicity of proceedings even after the culmination of earlier suit in a decree. Necessarily, the purpose under Rule 29 of Order XXI C.P.C. is not to permit a second suit and multiplicity of proceedings and to give an end to the principle of finality and conclusiveness. Stay of execution under Rule 29 of Order XXI C.P.C. can be granted only on satisfying any material defect or **OP(C) NO. 2287 OF 2021 5** want of jurisdiction which would sufficiently take away the decree sought to be executed as against the judgment-debtor or any person claiming under him, who came up with a second suit for that purpose. Necessarily, there should be ground to take away the impact of the principle of _res judicata_ as embodied under Section 11 C.P.C., otherwise, the decree would stand binding on the judgment-debtor and the person claiming under him and they will stand precluded from bringing up another suit, a second suit. The principle test to be applied is resting on the question of bonafides for a second suit in view of the bar under Section 11 C.P.C. and its exclusion in maintaining it. Hence, the stay of execution under Rule 29 of Order XXI C.P.C. cannot be granted on a mere asking unless the abovesaid test was applied so as to find out the bonafides and existence of a debatable case in the second suit and the non-applicaton of _res judicata_ as embodied under Section 11 C.P.C.. 3. The Apex Court in **Shaukat'** s case (Supra)had ## **OP(C) NO. 2287 OF 2021 6** laid down that the word “such court” occurred in the provision stands for the court, which passed the decree and put in execution and not the other courts and concluded that unless the decree sought to be executed is the one passed by that court, no jurisdiction under Order XXI Rule 29 C.P.C. can be exercised to stay the execution of a decree. The legal position is further made clear by this Court in **Arun Pavalin** 's (supra) that a stay application under Rule 29 of Order XXI C.P.C. cannot be rejected on the sole ground that he is a _pendente lite_ purchaser. What is relevant so as to exercise the jurisdiction as discussed earlier is the existence of prima facie debatable case in exclusion of application of Section 11 C.P.C.. The question came up for consideration in **Abdul Samad** 's case (supra) is pertaining to the application of the said rule to an execution of an interlocutory order and it is standing on a different pedestal. 4. The upshot of the abovesaid discussion is that no order of stay of execution can be granted ## **OP(C) NO. 2287 OF 2021 7** merely because of pendency of execution of a decree and a suit by the judgment-debtor or by the person litigating under him challenging the said decree, which are the initial requirements to be satisfied to bring up an application under that Rule, but it should satisfy the existence of bonafides for a second suit free from the clutches of Section 11 C.P.C.. and prima facie satisfaction of a debatable case in order to grant stay of execution under that Rule. Both these two vital ingredients are lacking in the case in hand. Hence, Ext.P3 deserves no interference. The O.P.(C) will stand dismissed accordingly. **Sd/-** ## **P.SOMARAJAN JUDGE** sv **OP(C) NO. 2287 OF 2021 8** ## **APPENDIX OF OP(C) 2287/2021** PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE EA 103/21 IN EP 90/2012 IN O.S.NO.456/2010 DATED 23.07.2021 OF THE MUNSIFF COURT, ALAPPUZHA. Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT IN EA 103/21 IN EP 90/2012 IN O.S.NO.456/2010 OF THE MUNSIFF COURT, ALAPPUZHA DATED 23.07.2021 DATED 24.09.2021. Exhibit P3 TRUE COPY OF THE ORDER DATED 19.11.21 IN EA 103/21 IN EP 90/2012 IN O.S.NO.456/2010 ON THE FILES OF THE ADDITIONAL MUNSIFF'S COURT, ALAPPUZHA. /TRUE COPY/ PS TO JUDGE