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Judhistir Jena Vs. Surendra Mohanty and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 422 of 1968
Judge
Reported inAIR1969Ori233
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 29
AppellantJudhistir Jena
RespondentSurendra Mohanty and anr.
Appellant AdvocateR.N. Misra, ;R.C. Patnaik and ;S.C. Adhikari, Advs.
Respondent AdvocateS. Misra (2), ;R.K. Mohanty and ;B. Das, Advs.
DispositionRevision allowed
Cases ReferredKannammal v. Muthukumaraswami
Excerpt:
.....the language of the rule clearly shows that the court has got the power to grant such a stay. 4. the fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for good reasons. until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the decree might succeed. most of these cases are likely to fail the onus be-ing very heavy on the plaintiff to establish fraud and similar charges. he was born on 1.5-10-50 and the father executed the mortgage bond on 6-11-50. after the father failed in litigation after full contest, the son has come forward with an averment that the father was addicted to opium and ganja and was of immoral..........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.' the language of the rule clearly shows that the court has got the power to grant such a stay. about that there can be no controversy, and in appropriate cases the court would also impose security.3. the main question for consideration is not whether the court has got the power to grant stay under order 21, rule 29 c. p. c., but the manner in which the court would ordinarily exercise its discretion. both the learned counsel were given full opportunity to cite authorities on this aspect of the matter. they made statements that there is no direct authority on the point excepting air 1936 mad 102 kannammal v......
Judgment:
ORDER

G.K. Misra, J.

1. The petitioner (defendant No. 1) got a decree for declaration of title and recovery of possession in T. S. No. 33 of 1964, in the court of the Munsif, Puri on 18-1-65. The decree was put into execution in Execution Case No. 50 of 1965. Opposite Party No. 1 (the plaintiff) and Opposite Party No. 2 (defendant No. 2) are respectively the son and the widow of late Krushna against whom the decree has been passed. They filed an application under Section 47 C. P. C. challenging the executability of the decree on the ground that it was void. The objection was overruled though both of them were substituted in place of Krushna after his death. The plaintiff has now filed T. S. No. 394 of 1968 for a declaration that the mortgage by conditional sale dated 6-11-50 executed by Krushna in favour of the decree-holder and the decrees in T. M. S. No. 90 of 1954 and T. S. No. 33 of 1964 are not binding on the plaintiff. In this suit the plaintiff filed an application for stay of Execution Case No. 50 of 1965. The execution case was stayed. Against this order granting stay the Civil Revision has been filed.

2. Mr. Srinibas Misra for the opposite parties supported the order on the strength of Order 21. Rule 29 C. P. C. which runs thus;

'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, 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.'

The language of the rule clearly shows that the Court has got the power to grant such a stay. About that there can be no controversy, and in appropriate cases the Court would also impose security.

3. The main question for consideration is not whether the Court has got the power to grant stay under Order 21, Rule 29 C. P. C., but the manner in which the Court would ordinarily exercise its discretion. Both the learned counsel were given full opportunity to cite authorities on this aspect of the matter. They made statements that there is no direct authority on the point excepting AIR 1936 Mad 102 Kannammal v. Muthukumaraswami which does not discuss any principle. It is therefore necessary to give an elementary analysis as to how this discretion should be exercised.

4. The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the decree might succeed. Such suits are also of a very precarious nature. The allegations therein ordinarily would be that the previous decree was obtained by fraud or collusion or that the decree was not binding on the present plaintiff as the transaction entered into by the judgment-debtor was tainted with immorality. These are all suits of uncertain and speculative character. Most of these cases are likely to fail the onus be-ing very heavy on the plaintiff to establish fraud and similar charges. That being the position, a person should not be deprived of the fruits of his decree merely because suits of frivolous character are instituted and litigants are out after further series of litigations. The decree must be allowed to be executed, and unless an extra-ordinary case is made out, no stay should be granted. Even if stay is granted, it must be on suitable terms so that the earlier decree is not stifled.

5. No hard and fast rule can be laid down in what cases stay would be granted or refused. But as has already been stated, a rigorous test is to be applied and in most of the cases prayer for stay is bound to be refused. In this particular case the circumstances are telling against the plaintiff. He was born on 1.5-10-50 and the father executed the mortgage bond on 6-11-50. After the father failed in litigation after full contest, the son has come forward with an averment that the father was addicted to opium and ganja and was of immoral character, whereby the estate was dissipated. The entire onus is on the plaintiff and there is no knowing within what period this litigation would come to close. With uncertainty regarding the character of the suit and the time to be taken, stay should be refused The learned Munsif took the applicability of Order 21, Rule 29 C. P. C. lightly and just as a matter of course.

6. In the result, the impugned order is set aside and the stay granted is vacated. The Civil Revision is allowed. In the circumstances parties to bear their owncosts.


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