1. This is a revision by Hansraj against the order of the District Judge, Ganganagar, and arises in the following circumstances:
2. Hansraj had brought a suit on a mortgage against Satnarain opposite party, and his 'ather. Prahlad Rai. 'In that suit Satnarain's mother acted as his guardian. That suit was decreed against both Prahlad Rai and Satnarain in 1951. About two years later, Satnarain brought the suit, out of which the present proceedings have arisen, through another next friend Kishangopal. It is immaterial for present purposes to mention the case put forward by Satnarain in detail.
Suffice it to. say that Satnarain prayed that the decree passed against him in the earlier suit in favour of Hansraj be declared to be null and void, and his share in the house mortgaged be declared to be not liable to sale in that decree. Along with his plaint, Satnarain made an application which has given rise to the present proceedings. The last paragraph (Our translation) of that application reads as follows:
'Consequently the application is presented under Order XXXIX, Rule 1, and it is prayed that till the decision of the suit execution proceedings should be stayed, and defendant No. 1, namely Hansraj, be forbidden from taking further proceedings in execution.'
It may be mentioned that the original decree was passed by this very court in favour of Hans-raj, and was under execution in the same court, Consequently, the court treated this application as one under Order XXI, Rule 29, even though it was mentioned in the last part of the application, translated by us above, that it was under Order XXXIX, Rule 1 Order P. C.
3. The prayers were two-foia, namely.for stay of execution, which could, If at all, be made under Order XXI Rule 39, and (2) for temporary injunction which could, of course, be granted under Order 29, Rule 1. The notice, that was issued by the Court on 10-3-53 to Hansraj, was to show cause why execution proceedings should not be stayed. This, in our opinion, clearly showed that the Court treated it as an application under Order XXI, Rule 29. Whether the court could do so or not will be considered by us shortly. The matter was gone into on the 20th of May, 1953, and the court passed an order on that date in the following terms :
'If the plaintiff (i.e. Satnarain) gave security for the decretal amount to the effect that if the suit is dismissed, the surety will pay the decretal amount, execution will be stayed, security to be deposited by the next date, otherwise execution would continue.'
The next date was the 28th July, J953, and by this date no security had been deposited. Therefore, the court ordered on that day that as no security had been deposited, execution would continue.
4. Thereafter, there was an appeal to the District Judge by Satnarain under O XLIII Rule 1 (r). He treated the order of the 20th May, 1953, as an order under Order XXXIX, and the contention on his behalf was that that part of the order, which required that he should give security, was improper, and could not be passed under Order XXXIX, and therefore the court was wrong in allowing execution to proceed after the 28th of July, 1953.
The appeal was sought to be treated within time from the 28th of July, 1953, because Satnarain claimed that he was aggrieved only when the court ordered that execution might go on-
5. The District Judge came to the conclusion that the order of the 20th of May, 1953, was under Order XXXIX. He also held that it was not open to ' the court to pass any order as to security in an order under Order XXXIX. No question of limitation seems to have been raised before the District Judge and therefore he allowed the appeal, and set aside that part of the order of the 20th of May, 1953, which required the applicant Satnarain to deposit security.
The final result was that the order of the 28th July, 1953, also fell through, and Satnarain got stay of execution without giving any security. Hansraj has come to this Court in revision against this order of the District Judge.
6. The first and the most important question that we have to decide is whether the order of the 20th of May, 1953, was an order under Order XXXIX, Rule 1, or under Order XXI, Rule 29. We are of opinion that that order was clearly an order under Order XXI, Rule 29, and not an order under Order XXXix, Rule 1, and the District Judge was wrong in taking the view that it .was .an order under Order XXXIX, Rule 1 He seems to have been led away by the use of the words 'Order XXXIX, Rule 1' in Satnarain's application, and does not seem to have applied his mind to the substance of the matter.
7. It has been urged on behalf of the opposite party, however, that Order XXI, Rule 29 does not apply to the circumstances of this case, and therefore the District Judge could not but treat the order of the 20th May 1953, whatever its nature, as an order under Order XXXIX. The argument is that an order under Order XXI, Rule 29 can only be passed in execution proceedings, and cannot be passed by the court, before whom the subsequent suit Is filed, in proceedings in that suit. No authority has. however, been cited in support of this contention. We are of opinion that the language of Order XXI, Rule 29 is unambiguous, and does not sup-port this contention. Order XXI. Rule 29 reads as follows:
'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.''
All that is required for the application of Order XXI, Rule 29 is (1) that the suit should be pending in any court against the holder of a decree of that very court, (2) and that the suit should have been filed by the person against whom the earlier decree was passed. In such a case, it is open to the court to stay execution of the decree until the pending suit has been decided on such terms as to security or otherwise as it thinks fit.
Thus there are only two conditions to be satisfied for the application of Order XXI, Rule 29, and those two conditions are admittedly satisfied in this case. Rule 29 does not provide that the application for stay under it should be made on the execution side, and not on the original side. The reason for this is that the court is the same, and it is immaterial in our view whether the application is made on the execution side, or on the original side.
If anything, the words of Rule 29 suggest that generally speaking the application should be made on the original side when the suit is filed. The application, therefore, which was made in this case, was clearly covered by the terms of Order XXI, Rule 29, and one of the prayers was for stay of execution which could only be granted under Order XXI, Rule 29, and not under Order XXXIX. The contention, therefore, of learned counsel for the opposite party that the application having been made in the suit the Court could not stay execution under Order XXI, Rule 29 must be overruled.
8. Now let us look at the way in which this application was treated by the Civil Judge. He gave notice to Hansraj to show cause why execution should not be stayed. Such a notice clearly falls under Order XXI, Rule 29. When he came to pass an order in May, 1953, the order was to stay execution. There was no order for issue of a temporary injunction, and no temporary injunction was ever issued in the terms of Order XXXIX, Rule 1.
In these circumstances we cannot understand how the District Judge has treated the order of the 20th of May, 1953. as an order of injunction. The mere fact that the Civil Judge did not say that the order was being issued under Order XXI, Rule 29, does not mean that this is an order under Order XXXIX. Rule l, simply because Satnarain in his application, at one place, used those words. The order of the District Judge therefore is clearly wrong, and must be set aside.
9. The next question is as to what order we should pass now the matter has come before us. We must say that the trial court has passed an order for giving security as if such an order is a matter of course in suits of this kind. The court should have considered various circumstances before deciding that security should be furnished up to the entire decretal amount of the former suit.
This is a case where the former decree was passed on a mortgage, and so some security is already there. The Civil Judge should therefore have enquired whether the security which is already there was sufficient or not. If it appeared to the Civil Judge that that security was not sufficient, he might have asked for such further amount as might be necessary to make up the deficiency. Further, the Civil Judge should have enquired whether it was. possible in the earlier suit for the decree-holder to ask for a personal decree. If, for example, the decree-holder in the earlier suit could not ask for a personal decree at all, there was nothing further to be required in the way of security so far as the earlier decree was concerned.
These are all matters therefore which should have been considered, and as these have not been considered, we think that, the proper order for us to pass is to direct the Civil Judge to go into this question of security again in the light of these remarks.
10. We, therefore, allow, the application withcosts of this Court and the District Judge's courtto Hansraj. The order of the District Judge isset aside, We also set aside the order of the CivilJudge, dated 20th May, 1953, and the Civil Judgeis directed to go into the question of securityagain, and proceed on the lines indicated above.