Karnataka High Court
Sri Prakash H S vs M/S. Renaissance Holdings And … on 27 January, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 37762 OF 2025 (GM-CPC)
BETWEEN:
RENAISSANCES HOLDINGS
AND DEVELOPERS PVT LTD
NO. 50, RENAISSANCE LANDMARK
17TH CROSS, 8TH MAIN
MALLESHWARAM
BENGALURU 560055
REP. BY ITS AUTHORISED
SIGNATORY MR. SUDHAMA V.
...PETITIONER
(BY SRI.SHYAN CHINNAPPA, SR. COUNSEL FOR
SRI. JAYANTH V., ADVOCATE)
AND:
1. H S PRAKASH
S/O LATE SRI. SHAMANNA REDDY
AGED ABOUT 60 YEARS HAL III STAGE,
Digitally signed INDIRANGAR 1667, 9TH MAIN
by CHANDANA BENGALURU 560 075
BM
Location: High
Court of 2. SRI. H S RAVINDRA
Karnataka
S/O LATE SRI. SHAMANNA REDDY
AGED ABOUT 66 YEARS 1667,
9TH MAIN HAL III STAGE,
INDIRANGAR BENGALURU 560 075
...RESPONDENTS
(BY SMT. S. NAGANANDINI., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 10-07-2025 PASSED IN EX. PET.NO. 171/2014 ON THE
FILE OF THE XLIII ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, ON IA NO.2 FILED UNDER ORDER 21 RULE 29 PCC
WHEREBY THE EXECUTION PROCEEDINGS HAVE BEEN STAYED
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SUBJECT TO THE RESPONDENTS DEPOSITING INR 50 LACS OR
FURNISHING A BANK GUARANTEE FOR THE SAID AMOUNT (I.E.
ANNEXURE A)
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
This petition by the petitioner – decree holder in
Ex.Pet.No.171/2014 is directed against the impugned order dated
10.07.2025 passed by the XLIII Additional City Civil and Sessions
Judge, Bengaluru (for short “the Executing Court”), whereby the
application, I.A.No.2 filed by the respondents – judgment debtors
seeking stay of execution proceedings till disposal of
O.S.No.1036/2012 was allowed by the Trial Court.
2. Heard learned Senior counsel for the petitioner and
learned counsel for the respondents and perused the material on
record.
3. A perusal of the material on record will indicate that the
petitioner filed an application under Section 9 of the Arbitration and
Conciliation Act, 1996 in A.A.No.198/2012 against the respondents.
In the said proceedings, a compromise was entered into between
the petitioners and respondents, pursuant to a compromise petition
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filed before the court on 07.11. 2012, as a result of which the said
A.A.No.198/2012 was allowed in terms of the compromise. The
compromise petition filed by the parties reads as under:
“COMPROMISE PETITION UNDER ORDER 23(3)
READ WITH SECTION 151 OF THE CODE OF CIVIL
PROCEDUREThe parties to the above petition submits the following:
Due to the intervention of well wishers, both Parties to
the above petition have come forward to settle the matter
amicably as per the terms and conditions mentioned below:
a) The Respondents admit and accept the execution of
the Agreement of Sale dated 07.07.2011 and also the
receipt of Rs.39,32,251/- (Rupees Thirty Nine Lakhs
Two Thousand Two Hundred Fifty One only) in all
towards part payment of the sale consideration.
b) The Respondents agree and undertake to construct a
pucca compound wall surrounding the schedule
property before the execution of the Sale Deed as
reiterated at Clause 5 of the Agreement of Sale
bearing Registration No.2083/2011-12 dated
27.07.2011, Book I stored in CD no KRID 368, within
two months time from the date of filing of the
Compromise Petition and the Respondents further
undertake to execute the sale deed within 30 days
from the date of completion of the Compound wall.
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The construction of the compound wall is a condition
precedent on execution of Sale deed so as to
ascertain the correct area available in the schedule
property since the rate has been fixed on the basis of
sq. feet area.
c) The Respondents undertake to execute absolute Sale
Deed in terms of said agreement of sale dated
27.07.2011 within the stipulated time as agreed
mutually between the Parties from the date of filing of
this compromise petition before the Office of the
concerned Sub-Registrar by receiving the balance
sale consideration without fail to be calculated at the
rate of Rs.300/- per sq. feet.
d) The Respondents further agree and undertake that
they will not alienate suit schedule property in any
manner in favour of third parties and also not to carry
out any development activities.
In the light of the aforesaid terms and conditions, both
parties pray that this Hon’ble Court may be pleased to allow
the above petition as prayed for in the interest of justice
without cost.”
4. As can be seen from the aforesaid joint compromise
petition executed by petitioner and respondents, which culminated
in a compromise order dated 07.11.2012, under which the said
A.A.No.198/2012 was disposed of, the respondents had
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undertaken to execute a sale deed in favour of the petitioner. Since
the respondents are alleged to have not complied with the terms
and conditions of the compromise, the petitioner instituted the
instant execution proceedings in Ex.Pet.No.171/2014 against the
respondents seeking implementation, enforcement and execution.
of the compromise order passed by the Trial Court. In the
meanwhile a suit in O.S.No.1036/2012 was filed by the three
sisters of respondent Nos.1 and 2 for declaration of their alleged
share in relation to the suit schedule properties and for other
reliefs. The petitioner got himself impleaded as defendant No.6 in
the said suit, which is pending consideration. Under these
circumstances, the respondents herein filed the instant application
invoking Order XXI Rule 29 CPC seeking stay of the instant
execution proceedings on the ground that the said suit in
O.S.No.1036/2012 was pending, in which there was an order of
injunction. The said application having been opposed by the
petitioner, the Executing Court proceeded to pass the interim order
allowing the application, aggrieved by which the petitioner is before
this Court by way of the present petition.
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5. Learned Senior Counsel for the petitioner would invite
my attention to the material on record as well as the provisions
contained in Order XXI Rule 29 CPC in order to contend that the
said provisions would not apply to the instant execution
proceedings, particularly when the aforesaid suit in
O.S.No.1036/2012 had not been instituted by the respondents –
judgment debtors herein, but by their sisters and so long as Order
XXI Rule 29 was not applicable, it was not open for the Executing
Court to hold its hands and stay all the proceedings pending
disposal of the said suit and as such, the impugned order passed
by the Executing Court deserves to be set aside and the
application filed by the respondents was liable to be dismissed.
6. Per contra learned counsel for the respondents would
support the impugned order and submit that there is no merit in the
petition and the same is liable to be dismissed.
7. A perusal of the impugned order will indicate that it is
an undisputed fact that that the respondents entered into a
compromise with the petitioner and filed a compromise petition in
A.A.No.198/2012 on 07.11.2012. It is also not in dispute that prior
to the respondents entering into a compromise with the petitioner
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and filing a compromise petition, which culminated in the said
compromise order, the sisters of the respondents had already
instituted a suit on 03.02.2012 in O.S.No.1036/2012 by Smt. H.S.
Devika Rani and others against the respondents for declaration of
their alleged share over the suit schedule properties. It is needless
to state that despite their sisters already having instituted the said
suit against them, the respondents thought it fit to enter into a
compromise with the petitioner and agreed to execute a sale deed
in favour of the petitioner. Under these circumstances having
entered into a compromise after institution of O.S.No.1036/2012 by
their sisters, the respondents are clearly estopped from
subsequently contending or taking advantage of the said suit for
the purpose of seeking stay of execution proceedings till disposal
of the said suit.
8. It is also relevant to state that the said suit was not
filed by the respondents herein, but by their sisters and the
respondents have not filed their written statement in the said suit,
even till today. Under these circumstances, the sole ground on
which the respondents seek stay of the instant execution
proceedings was the said O.S.No.1036/2012 as stated supra,
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could have neither been relied upon by the respondents nor made
the basis to stay further proceedings in Ex.Pet.No.171/2014.
9. Learned Senior Counsel for the petitioner is also
correct in his submission that the said suit in O.S.No.1036/2012
evidently having not been instituted by the respondents but by their
sisters much prior to the compromise, which is put into execution,
the provisions contained in Order XXI Rule 29 would clearly have
no application to the facts and circumstances obtaining in the
instant case.
10. This Court, in the case of Sikandar Mohammed Ali
Dalal and another Vs. Babu Hanumanth Mindolkar (Dead by
LRs) – W.P.No.103071/2017 dated 18.01.2023, held as under:
“This writ petition is directed against the impugned
order passed on I.A. No. 12 dated 01.12.2016 in E.P. No.
18/2012 on the file of the Civil Judge, Haliyal whereby the
said application filed by the respondent-judgment debtor
under Order 21 Rule 29 CPC seeking stay of further
proceedings in the execution petition till disposal of O.S. No.
22/2016 pending on the file of the Sr. Civil Judge, Yallapur
sitting at Haliyal, was allowed by the executing Court.
2. The brief facts giving rise to the present writ
petition are as follows:
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The petitioners herein instituted a suit in O.S. No.
3/1971 against the respondent herein for possession, mesne
profits and other reliefs before the Civil Judge, karwar. The
said suit was subsequently transferred to the Court of Civil
Judge, Haliyal (trial Court) and re-numbered as O.S. No.
79/2003. By judgment and decree dated 07.09.2006, the
trial Court decreed the suit in favour of the petitioners against
the respondents, thereby directing the respondents to hand
over possession of the suit ‘A’ schedule property to the
petitioners within a period of three months and granted
mesne profits in their favour.
Aggrieved by the said judgment and decree passed by
the trial Court, the respondent herein preferred an appeal in
R.A. No. 8/2006 on the file of the Civil Judge, Yallapur. The
said appeal was allowed by the first appellate Court vide
judgment and decree dated 13.12.2007, as a result of which
the suit filed by the petitioners came to be dismissed.
Aggrieved by the judgment and decree passed by the
first appellate Court in R.A. No. 8/2006, the petitioners herein
preferred an appeal in R.S.A. No. 520/2008 before this
Court. By judgment and decree dated 15.07.2011, this Court
allowed the appeal preferred by the petitioners and restored
the judgment and decree of the trial Court, thereby directing
the respondent to hand over possession of the suit schedule
property in favour of the petitioners.
Aggrieved by the judgment and decree passed in
R.S.A. No. 520/2008 dated 15.07.2011, the respondent
herein preferred SLP No. 28413/2012 before the Apex Court.
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By order dated 05.10.2012, the Apex Court dismissed the
Special Leave Petition preferred by the respondent,
consequent upon which the judgment and decree passed by
the trial Court and confirmed by this Court in R.S.A. No.
528/2008 became conclusive and binding upon the
respondent, who became liable to quit, deliver and hand over
the possession of the suit schedule property in favour of the
petitioners.
Subsequently, the petitioners instituted execution
proceedings in E.P. No. 18/2012 before the trial Court
(executing Court) to enforce the aforesaid judgment and
decree passed in their favour against the respondent. In the
said execution proceedings, the respondent/ judgment
debtor filed an application under Section 47 CPC seeking
dismissal of the execution petition. The said application was
allowed by the executing Court, aggrieved by which the
petitioner approached this Court in W.P. No. 81052/2013
which was allowed vide order dated 17.07.2014 and set
aside the order passed by the executing Court. Aggrieved by
the same, the respondent/ judgment debtor preferred SLP
No. 28181/2014 before the Apex Court which also came to
be rejected vide order dated 03.11.2014 thereby confirming
the dismissal of the application filed by the respondent.
Subsequent to rejection of the aforesaid SLP No.
29181/2014 by the Apex Court, the respondent/judgment
debtor filed the suit in O.S. No. 22/2016 on the file of the Civil
Judge, Yallapur sitting at Haliyal for declaration that the
aforesaid judgment and decree passed in favour of the
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petitioners was a nullity and for other reliefs. In this context,
it is relevant to note that the petitioner No.1 executed a
registered gift deed dated 03.07.2014 in favour of the
petitioner No.2 and consequently both of them are continuing
the instant execution proceedings.
3. During the pendency of the aforesaid execution
proceedings, the respondent-judgment debtor filed I.A. No.
12 dated 21.03.2016 under Order 21 Rule 29 CPC seeking
stay of further proceedings in the execution proceedings
pending before the executing Court, i.e., Civil Judge, Haliyal,
till disposal of the suit in O.S. No. 22/2016 pending before
the Sr. Civil Judge, Yallapur sitting at Haliyal. The said
application having been opposed by the petitioners, the trial
Court proceeded to pass impugned order allowing I.A.No. 12
thereby staying further proceedings in the execution petition
till disposal of O.S. No. 22/2016. Aggrieved by the impugned
order passed by the trial Court, the petitioner is before this
Court by way of the present writ petition.
4. A perusal of the impugned order passed by the trial
Court will indicate that the trial Court has come to the
conclusion that since the aforesaid suit in O.S. No. 22/2016
filed by the respondent/ judgment debtor against the
petitioners herein was pending adjudication, it was
necessary to stay further proceedings in the execution
petition pending disposal of the said suit. In this context, it is
significant to note that Order 21 Rule 29 CPC reads as
under:
“29. Stay of execution pending suit between decree-
holder and judgment-debtor – Where a suit is pending in
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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 to security or
otherwise, as it thinks fit, stay execution of the decree
until the pending suit has been decided.”
5. A plain reading of the said provision will clearly
indicate that in order to enable the executing Court to stay
execution proceedings pending a suit between a
decreeholder and the judgment debtor, it is essential that
both the execution proceedings and the suit are pending
before the very same Court and not before two different
Courts. In other words, if the execution proceedings are
pending in one Court and the suit between the decreeholder
and judgment debtor is pending before another Court, which
is not of co-ordinate jurisdiction, the provisions contained in
Order 21 Rule 29 CPC would not be applicable and the
same cannot be invoked for the purpose of seeking stay of
the execution proceedings.
6. In the case of M.K. Chintamani Vs. M.K. Jayadeva
reported in (1991) 3 KLJ 42 this Court held as under:
1. This Civil Revision Petition is preferred against the
order dated 19.6.1987 passed by the XIX Additional Small
Causes Judge, Court of Small Causes, Bangalore City,
rejecting I.A.No. III filed by the petitioner under Order 21
Rule 29 read with Section 151 C.P.C. to stay further
proceedings in Execution No. 2146 of 1986 pending
decision in O.S.No. 2251 of 1987 on the file of the City
Civil Court, Bangalore.
2. The Execution Court has rejected the application on
the ground that the Order 21 Rule 29 of the C.P.C. is not
attracted; that as far as Section 151 of the C.P.C. is
concerned, it has not stated anything though it has
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referred to the contention of the petitioner raised under
Section 151 C.P.C.
3. Sri Rama Rao, learned Counsel appearing for the
petitioner has putforth two contentions; 1) That the
provisions of Order 21 Rule 29 of the C.P.C. are attracted
as the requirements of those provisions are satisfied, that
in the event it is held that the provisions of Order 21 Rule
29 of the C.P.C. are not attracted in the facts and
circumstances of the case, it is just and appropriate to
exercise the inherent power under Section 151 C.P.C.
4. Expanding the first contention, it is contended that the
Court which passed an order of eviction in H.R.C.No.
2462 of 1984 against the petitioner and the second
respondent, is none other than Civil Court and the Court
in which the suit is filed, is also a Civil Court and the Court
in which the execution is filed by the first respondent for
execution of the order of eviction passed in H.R.C.No.
2462 of 1984, is also a Civil Court, therefore, the
execution case and the suit are pending in the same
Court i.e., Civil Court, hence Order 21 Rule 29 of the C.P.
Code are attracted. Learned Counsel also placed reliance
on the Decisions of this Court in M.M. MATHEW v.
PRAFULCHAND AMRITLAL AND ANR., and SIDDAPPA
v. ASST. COMMISSIONER, SHIMOGA AND ANR., 1981
(2) KLJ 201
5. It is not possible to accept the contention. The scope
and effect of Order 21 Rule 29 of the C.P. Code as
amended by the Central Act 104/1976, has been
considered by this Court in P.B. SHANTHAPPA v.
MEHBOOBI, . On taking into consideration the conflicting
Decisions of various High Courts on the interpretation of
the provisions contained in Order 21 Rule 29 C.P. Code
before the enactment of Central Act 104/1976 and in the
light of the Decision of the Supreme Court in SHAUKAT
HUSSAIN @ ALI AKRAM AND ORS. v. SMT
BHUNESHWARI DEVI, the C.P.C. (Amendment) Act 104
of 1976 effected amendment to the provisions contained
in Order 21 Rule 29 of the C.P. Code. This Court taking
into consideration all these aspects in P.B. Shantappa’s
case has held thus:
“5. The provision under the Civil Procedure Code which
empowers the Court to stay the execution proceedings is
contained in Rule 29 of Order 21 which reads thus:
Stay of execution pending suit between decree holder and
Judgment debtor.
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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 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.”
The underlined words and the proviso have been inserted
by C.P.C. (Amendment) Act 104/1976.
6. The learned Civil Judge after referring to a Decision of
the Supreme Court in Shaukat Hussain @ Ali Akrarn and
others v. Smt. Bhuneswari Devi (Dead by L.Rs. and
others) has held that the aforesaid Decisions does not
govern Rule 29 of Order 21 of the C.P.C. as it stands after
the C.P.C. (Amendment) Act 104/1976. The Supreme
Court in the aforesaid Decision has held thus:
“For the applicability of Order 21 Rule 29 there should be
two simultaneous proceedings in one Court viz 1) a
proceeding in a 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.”
7. It is not possible to agree with the learned Civil Judge
that the amendment effected by C.P.C. (Amendment) Act
104/1976 has taken away the Rule 29 of Order 21 C.P.C,
out of the purview of the aforesaid Decision. In fact Rule
29 Order 21 has been amended by the C.P.C.
(Amendment) Act 104/1976 only to give effect to and
bring it within the ambit of the aforesaid Decision of the
Supreme Court. The words ‘such Court’ used in Rule 29
of Order 21 indicate that the Court which has passed the
decree the execution of which is sought in that Court and
the Court in which the suit is pending must be the same.
Prior to the amendment, there was a conflict of Decisions
on the question as to whether the Court to which a decree
is transferred for execution can act under Rule 29 of
Order 21 C.P.C. One view was that a Court to which the
decree of any Court was transferred could act under Rule
29 of Order 21 of the C.P. Code. Another view was that
the transferee Court had no power to act under Rule 29 or
Order 21 of the C.P. Code. In order to put an end to this
controversy, the Law Commission in its 27th Report
recommended for amendment of Rule 29 of Order 21 of
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the C.P. Code. In its 54th Report, the Law Commission
further proposed for insertion of a Proviso. In the light of
both these Reports, Rule 29 of Order 21 of the C.P. Code
came to be amended by C.P.C. (Amendment) Act,
104/1976 by inserting the underlined words and adding
the Proviso as pointed out earlier. That being so, the
learned Civil Judge is not correct in holding that he has
jurisdiction to stay the proceedings in execution pending
before another Court.
8. Therefore, in order to attract the provisions contained in
Order 21 Rule 29 of C.P.C., it is necessary that the
decree must have been passed by the same Court in
which the execution is pending and the suit filed
subsequent to the decree must also be pending in the
same Court between the same parties. The expression
“same Court” used in the Rule takes into its fold the
Principal Court and the Additional Court such as the Court
of Principal Munsiff and the Court of Additional Munsiff,
the Court of Principal Civil Judge or Court of Additional
District Judge and the Court of Additional District Judge,
because in such case, the Court will be the same but
there will be more than one Presiding Officers. However,
the expression “such Court” does not cover a case in
which the proceedings are pending in two different
Courts, such as Munsiff Court and Civil Judge Court or
District Court or any other Courts.
9. In the instant case, the order of eviction is passed by
the Court of Small Causes Judge and the execution is
also pending before that Court. Even taking into
consideration of the fact that the order passed under the
Karnataka Rent Control Act has to be executed and is
executable by a Civil Court, even then the requirements of
Order 21 Rule 29, is not satisfied because the suit is
pending before the City Civil Court which cannot be
equated to the Court of Small Causes or a Civil Judge
Court which is empowered to exercise the powers of a
Small Cause Court. Therefore, requirement of Order 21
Rule 29 of C.P.C. is not satisfied. Hence the Court below
is correct in holding that the provisions of Order 21 Rule
29 of C.P.C. are not attracted. In the Decisions and
1981(2) KLJ 201 this question did not come up for
consideration. Therefore, those two Decisions do not
have any bearing on the question raised in this case.
Hence they are of no assistance to the petitioner.
Accordingly, the first contention is rejected.
10. Now the question for consideration is whether in a
case like this inherent powers should be exercised. The
petitioner and the respondent No. 2 who are the wife and
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husband respectively have suffered an order of eviction in
HRC No. 2462 of 1984 as joint tenants of the schedule
premises. That order of eviction has been confirmed by
this Court in C.R.P.No. 1714 of 1986 decided on 15-1-
1987. Therefore, it is not open to the petitioner and the
second respondent to contend that they are not bound by
the order of eviction. Consequently the executing Court
cannot also Refuse to execute the order of eviction and
cannot stay the execution proceeding pending decision by
the Civil Court in the suit tiled by the petitioner. The
inherent powers cannot be exercised if it results in
defeating the decree or order of eviction or results in
violation of the specific provisions of the Act. The fact that
the petitioner is the sister of the 1st respondent does not
absolve her from the order of eviction suffered by her. The
fact that a suit for partition is filed, cannot also be made
aground to exercise inherent power to defeat the order of
eviction confirmed by this Court. Therefore, in the facts
and circumstances of the case, there is no scope for
exercising the inherent power in the instant case. Hence
the contention is rejected.
For the reasons stated above, the Civil Revision Petition
is dismissed.
—
7. As is clear from the aforesaid judgment of this Court,
in order to attract and invoke Order 21 Rule 29 r/w Sec. 151
CPC to seek stay of further proceedings in execution
proceedings, it is absolutely essential that the decree must
have been passed by the same Court in which the execution
case is pending and the suit filed subsequent to the decree
must also be pending inn the same Court between the
parties. It is also held that the expression “such Court” does
not cover a case in which proceedings are pending in two
different Courts, such as Court of Civil Judge or District Court
or any other Courts.
8. In the instant case, it is an undisputed fact that
execution proceedings are pending before the Civil Judge,
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Haliyal whereas the suit filed by the respondent-judgment
debtor in O.S. No. 22/2016 is pending on the file of the Sr.
Civil Judge, Haliyal sitting at Yallapur, which are two
completely different Courts and not the same Court for the
purpose of Order 21 Rule 29 CPC.
9. A perusal of the impugned order will indicate that
despite referring to the said judgment, the executing Court
has completely misdirected itself in not applying the
principles laid down in the said judgment and this has
resulted in erroneous conclusion.
10. Under the circumstances, I am of the considered
opinion that the finding recorded by the executing Court in
E.P. No. 18/2012 that the execution proceedings need to be
stayed till disposal of O.S. No. 22/2016 pending before a
different Court, i.e., Sr. Civil Judge, Yallapur sitting at Haliyal,
deserves to be set aside.
11. A perusal of the aforesaid judgment in Chintamani
supra, will also indicate that this Court has also adverted to
Sec. 151 CPC in order to hold that inherent power of the
Courts to stay proceedings in one more case cannot be
exercised to defeat a decree or eviction order in violation of
the Act. Under these circumstances also, Sec. 151 CPC is
also not available to the respondent-judgment debtor to seek
stay of further proceedings in E.P. No. 18/2012 pending
disposal of O.S. No. 22/2016.
12. A similar view has been expressed by the Bombay
High Court in the case of Kum. Aniketh Anant Lale & Ors. Vs.
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Shri Prakash Balu Lale & Ors. (W.P. No. 9418/2017) wherein
it is held as under:
“15. In this case, there is no dispute as regards basic
facts. The decree in RCS No. 319 of 2000 has declared
the sale deed in favour of Anant Lale, the predecessor-in-
title of the petitioners as null and void and has further
directed, Anant Lale to restore the possession of the suit
property to the decree-holders. This decree has attained
finality upto the level of the Hon’ble Supreme Court in the
year 2008 itself. There is also no dispute that Mr. Anant
Lale during the period between 2008 and his demise in
the year 2015 was very much a party to the execution
proceedings in the Court of Civil Judge, Junior Division.
During this period of 7 years, Anant Lale neither instituted
any suit to question decree in RCS No. 319 of 2000 nor
did he take out any other application to delay or resist
execution of the decree in RCS No. 319 of 2000.
Possibly, Anant Lale was satisfied taking benefit of the
Law’s proverbial delays in execution of decrees for
restoration of possession. After the demise of Anant Lale
in the year 2015 his legal representatives i.e. the
petitioners herein were brought on record since, they
were also bound by the decree in RCS No. 319 of 2000.
16. It is only in the year 2016 that the petitioners,
instituted RCS No. 229 of 2016 in the Court of Civil
Judge, Senior Division, Jaysingpur seeking for relief of
injunction simplicitor to restrain the 6 of 17 skc 926-
WP9418-17 decree-holders in RCS No. 319 of 2000 from
taking forcible possession of the suit property otherwise
than by the due process of law.
17. After the institution of this suit, the petitioners, took out
the application at Exhibit 65 in the executing court i.e. the
Civil Judge, Junior Division seeking a stay on execution
proceedings by invoking provisions of Order XXI Rule 29
of the CPC. By the impugned order, it is this application at
Exhibit 65 which has been dismissed by the executing
court.
18. Order XXI Rule 29 of the CPC provides that 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 to
security or otherwise, as it thinks fit, stay the execution of
the decree until the pending suit has been decided. The
proviso, with which we are not concerned in this case
deals with stay of a decree for payment of money.
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19. The petitioners’ application at Exhibit 65 invoking the
provisions of Order XXI Rule 29 of the CPC was entirely
misconceived and therefore was rightly dismissed by the
executing court by the impugned order. In the first place,
the suit instituted by the petitioners i.e. RCS No. 229 of
2016 was not instituted in the Court of Civil Judge, Junior
Division at Jaysingpur where the execution petition was
pending. Secondly and in any case, it is apparent that the
RCS No. 229 of 2016 was entirely misconceived 7 of 17
skc 926-WP-9418-17 since, the decree-holders in the
present case, were only executing the decree in RCS No.
319 of 2000 and therefore, there was no question of they
seeking restoration of possession of the suit property,
otherwise than by due process of law. In such
circumstances, the executing court, has quite correctly
exercised the discretion which was undoubtedly vested in
it in terms of Order XXI Rule 29 of the CPC and declined
to stay the execution proceedings which are pending
since the year 2008 for no fault of the decreeholders.
20. From the plain reading of the provisions of Order XXI
Rule 29 of the CPC it is quite clear that a judgment debtor
may invoke the provisions of Order XXI Rule 29 of the
CPC only when the suit is pending in any court against
the decree-holder of such court or of a decree which is
being executed by such court. This means that the suit
and the execution proceedings must be pending in one
and the same court in order to invoke the provisions of
Order XXI Rule 29 of the CPC.
21. The expression ‘such court’ as it appears in Order XXI
Rule 29 of the CPC has been interpreted by the Hon’ble
Supreme Court in the case of Shaukat Hussain @ Ali
Akram & Ors. vs. Bhuneshwari Devi (dead) by L.Rs. &
Ors.1 to mean the Court in which the suit is pending. At
paragraph 6, the Hon’ble Supreme Court, after analyzing
the provisions of Order XXI Rule 29 of the CPC has held
that it is obvious from a mere perusal of the rule that there
should be simultaneously two proceedings in one court.
One is the proceedings in execution at the instance of the
decree-holder against the 1 AIR 1973 SC 528 8 of 17 skc
926-WP9418-17 judgment debtor and the other, a suit, at
the instance of the judgment debtor against the decree-
holder. That is the condition under which the court in
which the suit is pending may stay the execution before it.
Besides, it is not enough there is a suit pending filed by
the judgment debtor. It is further necessary that the suit
must be against the holder of a decree of such court. The
words ‘such court’ are important. ‘Such court’, means in
the context of that rule the court in which the suit is
pending. In other words, the suit must be one not only
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pending in that court but also one against the holder of a
decree of that court. That appears to be the plain
meaning of the rule.
22. In Shaukat Hussain (supra), the Hon’ble Supreme
Court has also explained the purpose for enactment of
Order XXI Rule 29 of the CPC. At paragraph 7, the
Hon’ble Supreme Court has observed that it is true that in
appropriate cases a Court may grant an injunction against
a party not to prosecute a proceeding in some other
Court. But ordinarily Courts, unless they exercise
appellate or revisional jurisdiction, do not have the power
to stop proceedings in other Courts by an order directed
to such Courts. For this specific provisions of law are
necessary. Rule 29 clearly shows that the power of the
Court to stay execution before it flows directly from the
fact that the execution is at the instance of the decree-
holder whose decree had been passed by that Court only.
If the decree in execution was not passed by it, it had no
jurisdiction to stay the execution. In fact this is
emphasized by Rule 26 already referred to. In the case
before the Supreme Court the decree sought to be
executed was 9 of 17 skc 926-WP-9418-17 not the
decree of Munsif 1 st Court Gaya but the decree of the
Subordinate Judge, Gaya passed by him in exercise of
his Small Cause Court jurisdiction. In these
circumstances, the Hon’ble Supreme Court held that the
order staying execution passed by the Munsif, Gaya
would be incompetent and without jurisdiction.
23. The principle in Shaukat Hussain (supra) was
reiterated in Krishna Singh vs. Mathura Ahir & Ors.2 In
the said case, a suit for recovery of possession of
property belonging to a Math was decreed by Munsif and
said decree was finally affirmed by the Supreme Court
holding that the plaintiff was in de facto management of
the property though his title as Mahant was left open. The
decree also held that the defendant in the suit was a
trespasser. The defendant not satisfied with the decree
which attained finality upto the level of the Supreme Court
and in order to nullify the decree which had already
attained finality filed a civil suit in which he raised almost
the same pleas which he had taken in defence of the
previous suit. This suit was encouraged by the
observation made by the Hon’ble Supreme Court itself
that the title of the plaintiff as Mahant was left open. Such
suit was filed before the Civil Judge at Varanasi.
Thereafter, the defendant, filed application under Order
XXI Rule 29 of the CPC seeking for a stay to the
execution of the decree which had already attained finality
upto the level of the Supreme Court. The stay as sought
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for was granted in purported exercise of power under
Order XXI Rule 29 of the CPC.
24. The Hon’ble Supreme Court, in the aforesaid facts
and 2 AIR 1982 SC 686 10 of 17 skc 926-WP-9418-17
circumstances, not only set aside the stay order but also
directed the judicial officer to explain as to why, despite
clear orders, of the Hon’ble Supreme Court, the execution
was halted by an extra ordinary and palpably wrong order
under Order XXI Rule 29 of CPC. The Court observed
that the defendant seems to have adopted a subterfuge in
order to nullify the execution of the decree. The Court
held that there was very formidable defect in the order
passed under Order XXI Rule 29 of the CPC because
jurisdiction is vested only in the court which had passed
the decree to stay its execution. The Court relied upon its
earlier ruling in Shaukat Hussain (supra) and explained
that the additional words ‘or of a decree which is being
executed by such Court’ introduced by section 72 of the
Amendment Act 104 of 1976 in order XXI Rule 29 of the
CPC, did not make any difference to the legal position
explained in Shaukat Hussain (supra).
25. In Balasaheb s/o. Gulabrao Salunke vs. Anil s/o.
Raosaheb Deshmukh & Ors.3, the learned Single Judge
of this Court, following Shaukat Hussain (supra) has held
that there should be simultaneously two proceedings in
the same court, i.e. execution proceedings must be at the
instance of the decree-holder against the judgment debtor
and the other suit at the instance of the judgment debtor
against the decreeholder for invocation of the provisions
of Order XXI Rule 29 of the CPC.
26. In the present case, the execution proceedings are
pending before the Civil Judge, Junior Division at
Jaysingpur and the RCS No. 229 of 2016, on the basis of
which the provisions of Order XXI Rule 3 2017 (4) Mh.L.J.
399 11 of 17 skc 926-WP-9418-17 29 of the CPC were
sought to be invoked, is pending in the Court of Civil
Judge, Senior Division at Jaysingpur. In such
circumstances, the petitioners attempt to invoke the
provisions of Order XXI Rule 29 of the CPC was entirely
misconceived.
27. That apart, the learned executing court has referred to
the number of rulings in the impugned order which explain
that the provisions of Order XXI Rule 29 of the CPC only
confer a discretion upon the executing court to stay the
execution proceedings. This is on the basis that the
provision employs the expression ‘may’ and not ‘shall’.
This means that even if the predicates of Order XXI Rule
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29 of the CPC stand complied with, it is not obligatory
upon the executing court to stay the execution
proceedings. The power of the executing court is
discretionary and the executing court is duty bound to
exercise such discretion in a judicious manner.
28. In the present case, the decree-holders seek to
recover possession from the petitioners – judgment
debtors by instituting execution proceedings to execute
the decree in RCS No. 319 of 2000 which has attained
finality upto the level of the Hon’ble Supreme Court. This
is certainly not a case where the decree-holders seek to
recover possession of the suit property from the judgment
debtors either forcibly or otherwise than by due process of
law. The decree itself has attained finality in the year 2008
itself. The suit on basis of which the provisions of Order
XXI Rule 29 of the CPC were sought to be invoked was
instituted in the year 2016. The suit was instituted not by
the original judgment debtor who succeeded in delaying
the execution proceedings from 2008 to 2015, but, by the
legal 12 of 17 skc 926-WP-9418-17 representatives of the
deceased judgment debtor, after they were brought on
record in the year 2015.
29. Taking into consideration all these factors, it cannot be
said that the executing court in declining stay, has
exercised the discretion, which was undoubtedly vested in
it, either unreasonably or arbitrarily. In fact, this is a case
where discretion has been exercised in a judicious
manner, taking into consideration the fact that the decree
which has attained finality in the year 2008 right upto the
level of the Hon’ble Supreme Court, is yet pending in
execution.
30. In Shreenath & Anr. vs. Rajesh & Ors.4, the Hon’ble
Supreme Court was constrained to observe that the
seeker of justice, many a times, has to take long
circuitous routes, both on account of hierarchy of Courts
and the procedural law. Such persons are and can be
dragged till the last ladder of the said hierarchy for
receiving justice but even here he only breaths fear of
receiving the fruits of that justice for which he has been
aspiring to receive. To reach this stage is in itself an
achievement and satisfaction as he, by then has passed
through a long arduous journey of the procedural law with
may hurdles replica of mountain terrain with ridges and
furrows. When he is ready to take the bite of that fruit, he
has to pass through the same terrain of the procedural
law in the execution proceedings the morose is writ large
on his face. What looked inevitable to him to receive it at
his hands distance is deluded back into the horizon. The
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creation of the hierarchy of Courts was for a reasonable
objective for 4 (1998) 4 SCC 543 13 of 17 skc 926-
WP9418-17 conferring greater satisfaction to the parties
that errors, if any, by any of the lower Courts under the
scrutiny of a higher Court be rectified and long procedural
laws also with good intention to exclude and filter out all
unwanted who may be the cause of obstruction to such
seekers in his journey to justice. But this obviously is one
of the causes of delay in justice. Of course, under this
pattern the party wrongfully gaining within permissible
limits also stretches the litigation an much as possible.
Thus, this has been the cause of anxiety and concern of
various authorities, Legislators and Courts. How to
eliminate such a long consuming justice? We must
confess that we have still to go long way before true
satisfaction in this regard is received. Even after one
reaches the stage of final decree, he has to undergo a
long distance by passing through the ordained procedure
in the execution proceedings before he receives the bowl
of justice.
31. The Hon’ble Supreme Court after this preface has
finally held that in interpreting any procedural law, where
more than one interpretation is possible, the one which
curtails the procedure without eluding justice is to be
adopted. The procedural law is always subservient to and
is in aid of justice. Any interpretation which eludes or
frustrates the recipient of justice is not to be followed.
32. In Satyawati vs. Rajinder Singh & Anr.5, the Hon’ble
Supreme Court recalled the observations of the Privy
Council in General Manager of the Raj Durbhunga vs.
Coomar Ramaput 5 (2013) 9 SCC 491 14 of 17 skc 926-
WP-9418-17 Sing6 that ‘……………the difficulties of a
litigant in India begin when he has obtained a decree’. In
this case, the Hon’ble Supreme Court deprecated the
delay in execution of a decree made in the year 1996 and
went on to refer to the judgment of the Privy Council in
Kuer Jang Bahadur vs. Bank of Upper India Ltd.7 that
Courts in India have to be careful to see that the process
of the Court and the law of procedure are not abused by
judgment -debtors in such a way as to make courts of law
instrumental in defrauding creditors, who have obtained
decrees in accordance with their rights. The Supreme
court noted that inspite of such observations in 1925, the
Supreme Court, in Babu Lal vs. Hazari Lal Kishori Lal 8
was constrained to observe that procedure is meant to
advance the cause of justice and not to retard it. The
difficulty of the decree-holder starts in getting possession
in thwart the execution by all possible objections.
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33. In Satyawati (supra), the Hon’ble Supreme Court
made reference to Marshall Sons & Co. (I) Ltd. vs. Sahi
Oretrans (P) Ltd.9, in which the Hon’ble Supreme Court
had noted that execution proceedings are dragged for a
long time on one count or the other and, on occasion,
become highly technical accompanied by unending
prolixity at every stage providing a legal trap to the
unwary. Because of the delay, unscrupulous parties to the
proceedings take undue advantage and a person who is
in wrongful possession draws delight in delay in disposal
of the cases by taking undue advantage of procedural
complications. It is also a known fact 6 (1871-72) 14 MIA
605: 20 ER 912 7 AIR 1925 Oudh 448 (PC) 8 (1982) 1
SCC 525 9 (1999) 2 SCC 325 15 of 17 skc 926-WP-9418-
17 that after obtaining a decree for possession of
immovable property, its execution takes a long time.
34. The Hon’ble Supreme Court also made reference to
tis decision in Shub Karan Bubna vs. Sita Saran
Bubna10, again recalling proverbial observation by the
Privy Council that the difficulties of a litigant begin when
he obtains a decree and therefore it is necessary to
remember that success in a suit means nothing to a party
unless he gets the relief. Therefore, to be really
meaningful and efficient, the scheme of the Code should
enable a party not only to get a decree quickly but also to
get the relief quickly. This requires a conceptual change
regarding civil litigation, so that the emphasis is not only
on disposal of suits, but also on securing relief to the
litigant. The Hon’ble Supreme Court concluded by stating
that it strongly feels that there should be no unreasonable
delay in execution of a decree because if the decree-
holder is unable to enjoy the fruits of his success by
getting the decree executed, the entire effort of successful
litigant would be in vain.
35. Applying such principles to the facts and
circumstances of the present case it is necessary to
observe that there was nothing bona fide either, in the
application at Exhibit 65 or at least prima facie, in the
institution of RCS No. 229 of 2016. As noted earlier, the
decree- holders seek to recover possession of the suit
property on the basis of decree in RCS No. 319 of 2000
which has attained finality in the year 2008 upto the level
of the Hon’ble Supreme Court. In such circumstances, to
allege that there is any apprehension that the 10 (2009) 9
SCC 689 16 of 17 skc 926-WP-9418-17 decree-holders
seek to recover possession of the suit property forcibly or
otherwise than by due process of law, at least prima facie,
is quite misconceived. In the facts and circumstances of
the present case, a reasonable inference can be drawn
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that the very institution of RCS No. 229 of 2016 is to
prolong or delay the execution proceedings in respect of
decree in RCS No. 319 of 2000, which as noted earlier,
has attained finality right upto the level of the Hon’ble
Supreme Court, way back in the year 2008 itself.
36. Accordingly, there is no merit in this petition, which is
hereby dismissed. There shall however be no order as to
costs. The interim order, if any, is hereby vacated. The
executing court is directed to proceed with the execution
expeditiously”.
13. The issue regarding applicability of Order 21 Rule 29
CPC can be examined from yet another angle. It is an
undisputed fact that the instant execution proceedings were
instituted by the petitioners/ decree holders against the
respondent/ judgment debtor in the year 2012 while the suit
in O.S. No. 22/2016 was instituted by the respondent/
judgment debtor subsequently , i.e., in the year 2016. It is
relevant to state that Order 21 Rule 29 CPC to be applicable,
it is also essential that the suit ought to be pending as on the
date of institution of the execution proceedings and Order 21
Rule 29 CPC will not apply to suits which are instituted
subsequent to institution of the execution proceedings. To
put it differently, the power of the executing Court to stay its
own proceedings can be invoked only in cases where a suit
has already been instituted by the judgment debtor prior to
institution of the execution proceedings and the same will not
apply to suits which are instituted subsequent to institution of
the execution proceedings. Any another interpretation or
construction placed on Order 21 Rule 29 CPC will lead to
disastrous consequence since every judgment debtor would
be in a position to scuttle, stall and obstruct the execution
proceedings by filing a suit after institution of the execution
proceedings seeking to enforce the decrees which have
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attained finality and become conclusive and binding upon
judgment debtor. Viewed from this angle also, in the
undisputed facts of the instant case which disclose that the
execution proceedings were instituted prior to institution of
the suit in O.S. No. 22/2016 filed by the respondent/
judgment debtor, Order 21 Rule 29 CPC would be
inapplicable to the facts of the instant case and on this score
also, the application I.A. No. 12 was liable to be dismissed.
14. It is well settled that invoking the provision contained
in Order 21 Rule 29 CPC is discretionary and should be
exercised judiciously and not mechanically as a matter of
course. It is equally well settled that mere satisfaction of the
pre-conditions stipulated in Order 21 Rule 29 CPC is not
sufficient for execution proceedings to be stayed and the
power under this Rule has to be exercised only in
exceptional cases where the interest of justice requires it and
the fundamental consideration should be that the
decreeholder should not be deprived of the fruits of the
decree, except for compelling reasons and unless an
extraordinary case is made out, no stay should be granted
and the decree should be allowed to be continued.
15. In the case of Sundara Bai and Ors. Vs. Sonubai
(ILR 2004 KAR 1558) this Court has held as under:
1. This Writ Petition by the judgment debtors is directed
against the order dated 19.1.2004 passed by the
Executing Court rejecting IA-I filed by them under Order
21 Rule 29 of CPC for stay of further proceedings in
Ex.Case No. 62/2003 on the ground of pendency of a suit
in O.S. No. 314/2003 in the very same Court.
The aforesaid execution case was filed to execute the
decree passed in O.S. No. 780 of 1990.
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2. I have heard Mr. Ram Bhat, learned Senior Counsel for
the petitioners and perused the impugned order. Mr. Ram
Bhat, in support of his submission that the impugned
order is erroneous has relied on a judgment of the
Supreme Court in SHAUKAT HUSSAIN v.
BHUNESHWARI DEVI and also a judgment of this Court
in PUJARI SUBBAIAH v. LAKKAPPANAVARA.
3. To examine the correctness of the impugned order, it is
relevant to notice the scope and ambit of Order 21 Rule
29 of CPC which reads as follows:
“Stay of execution pending suit between decree holder
and judgment debtor, 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, instituted
by the person against whom the said 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.”
The power to stay execution of the decree under Order 21
Rule 29 of CPC is discretionary. The discretion should be
exercised judicially and not mechanically as a matter of
course. On mere satisfaction of the precondition
stipulated in Order 21 Rule 29 of CPC, the execution
proceeding is not to be stayed. The power under this rule
has to be exercised only in exceptional cases where the
interest of justice requires it. The fundamental
consideration should be that the decree holder is not to
be deprived of the fruits of the decree except for good
reasons. The decree must be allowed to be executed and
unless an extraordinary case is made out, no stay should
be granted. As held by the Supreme Court in KRISHNA
SINGH v. MATHURA AHIR , the jurisdiction to stay
execution of the decree under Order 21 Rule 29 of CPC
has to be exercised with very great care and only in
special cases.
4. A perusal of the impugned order would show that the
Executing Court on a consideration of all the relevant
aspects has declined to stay further proceedings in the
Execution case. On the facts of the case, I am satisfied
that the executing Court has exercised its discretion
judicially and the discretion exercised cannot be said to
be arbitrary or capricious to call for interference under
Article 226 and 227 of the Constitution of India.
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5. At this stage, Mr. Rambhat, learned Senior Counsel
submits the certain observations made by the Trial Court
in the course of the impugned order would prejudice the
suit in O.S. No. 314/2003. Without going into the
correctness of the said submission. I direct the Trial Court
to dispose of O.S. No. 314/2003 without being influenced
by the observations made in the course of the impugned
order.
6. In the result, the petition fails and is hereby dismissed.
No costs.
—
16. It has been repeatedly noticed by the Apex Court, this
Court and all other High Courts that the difficulties of a
decreeholder commence after obtaining a decree. In a
recent judgment in the case of Rahul S. Shah Vs. Jinendra
Kumar Gandhi & Ors. (Civil Appeal Nos. 1659-
1660/2021) the Apex Court has held as under:
“23. This court has repeatedly observed that remedies
provided for preventing injustice are actually being
misused to cause injustice, by preventing a timely
implementation of orders and execution of decrees. This
was discussed even in the year 1872 by the Privy
Counsel in The General Manager of the Raja Durbhunga
v. Maharaja Coomar Ramaput Sing 14 which observed
that the actual difficulties of a litigant in India begin when
he has obtained a decree. This Court made a similar
observation in Shub Karan Bubna @ Shub Karan Prasad
Bubna v Sita Saran Bubna15, wherein it recommended
that the Law Commission and the Parliament should
bestow their attention to provisions that enable frustrating
successful execution. The Court opined that the Law
Commission or the Parliament must give effect to
appropriate recommendations to ensure such
amendments in the Code of Civil Procedure, 1908,
governing the adjudication of a suit, so as to ensure that
the process of adjudication of a suit be continuous from
the stage of initiation to (1871-72) 14 Moore’s I.A. 605
(2009) 9 SCC 689 the stage of securing relief after
execution proceedings. The execution proceedings which
are supposed to be handmaid of justice and subserve the
cause of justice are, in effect, becoming tools which are
being easily misused to obstruct justice.”
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Coming back to the facts of the instant case, indisputably, the
petitioners commenced the litigation in 1971 and have not
been able to realize the fruits of the decree passed in their
favour despite more than 50 years and the respondent/
judgment debtor has been successfully thwarting, scuttling
and obstructing the petitioner from realizing the fruits of the
decree on one pretext or the other and by filing repeated
applications and has even gone to the extent of filing a
separate suit in the year 2016.
17. As can be seen from the aforesaid judgments, the
principles underlying Order 21 Rule 29 CPC can be
summarized as under:
a) That, Order 21 Rule 29 CPC is applicable only if the
suit and the execution proceedings referred to in the said
provisions are pending before the very same Court and not
before two different courts which are not of co-ordinate
jurisdiction;
b) That the said provisions will not apply if the suit is
instituted subsequent to institution of the execution
proceedings: In other words, the said provision would apply
only if the suit is instituted prior to institution of the execution
proceedings and in the event the execution proceedings
have already been instituted, mere institution of suit
subsequently and its pendency cannot be made the basis to
invoke Order 21 Rule 29 CPC;
c) The power and jurisdiction to stay its own proceeding
pending before itself by the executing Court has to be
exercised only under extraordinary and exceptional
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circumstances and not as a matter of course and care/
caution has to be taken by the executing Court to find out if
staying its own proceedings would result in abuse of process
of law and in that event, the executing Court would not stay
further proceedings under these provisions.
18. Under these circumstances, having regard to the facts
of the case on hand, I am of the considered opinion that this
is not a fit case which would enable the executing Court to
exercise its discretion to stay execution proceedings and on
this ground also, the impugned order passed by the
executing Court deserves to be set aside.
19. Insofar as the reliance placed by the executing Court
on the judgment of this Court in the case of U.Sadanand
Udupa Vs. Smt. T. Kusuma Shedthi (2011) 5 KCCR 4017 is
concerned, the said judgment is clearly distinguishable on
facts and the same cannot be applied to the factual situation
obtaining in the instant case. Consequently, the finding
recorded by the executing Court relying upon the said
judgment is clearly erroneous and unsound.
20. In view of the aforesaid facts and circumstances, I am
of the considered opinion that the executing Court clearly fell
in error in allowing I.A. No. 12 by passing the impugned
order which deserves to be set aside.
21. In the result, I pass the following order.
ORDER
i) Writ Petition is hereby allowed;
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ii) Impugned order passed on I.A. No. 12 dated
01.12.2016 in E.P. No. 18/2012 by the file of the Civil Judge,
Haliyal is set aside. Consequently, I.A. No. 12 filed by the
respondent/ judgment debtor stands dismissed;
iii) The executing Court is directed to proceed further in
Execution Petition No. 18/2012 and conclude the
proceedings as expeditiously as possible and at any rate
within a period of six months from the date of receipt of a
copy of this order.”
11. Under these circumstances the Executing Court clearly
fell in error in allowing the application filed by the respondents
under Order XXI Rule 29 CPC and as such, the impugned order
passed by the Trial Court deserves to be set aside.
12. Insofar as the contention urged by the learned counsel
for the respondents that even assuming Order XXI Rule 29 CPC
was not applicable, the Executing Court had inherent powers to
stay execution proceedings till disposal of O.S.No.1036/2012 is
concerned, It is a well settled position of law that recourse to
Section 151 CPC would be available only if there is no express
provision either available or invoked by a party; In the instant case,
the specific contention of the respondent that pending disposal of
O.S.No.1036/2012, the execution proceedings ought to be stayed
– 32 –
NC: 2026:KHC:4378
WP No. 37762 of 2025
HC-KAR
under Order XXI Rule 29 CPC having been put forth, the
respondents would not be entitled to fall back upon Section 151
CPC for the purpose of seeking stay of further execution
proceedings and consequently the impugned order deserves to be
set aside on this ground also.
13. In the result, I pass the following:
ORDER
(i) The petition is hereby allowed.
(ii) The impugned order dated 10.07.2025 passed on
I.A.No.2 in Ex.Pet.No.171/2014 on the file of the
XLIII Addl. City Civil and Sessions Judge,
Bengaluru, is hereby set aside.
(iii) The application, I.A.No.2 is dismissed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BMC
List No.: 2 Sl No.: 12