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H.L. Nantha Vs. T.C. Ramalingam Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 2041 of 1977
Judge
Reported inAIR1978Mad269; (1978)1MLJ344
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 29; Code of Civil Procedure (Amendment) Act, 1976
AppellantH.L. Nantha
RespondentT.C. Ramalingam Pillai
Appellant AdvocateM.B. Dominque, Adv.
Respondent AdvocateV. Ratnam, Adv.
DispositionPetition allowed
Excerpt:
- - the learned district munsif failed to take note of this important change made in the relevant provision of the civil procedure code......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 itgrants stay without requiring security, record its reasons for so doing.' as a result of the amendment, the court acquires competency to stay not only the decree which it passed, but also the decree which had been transferred to it for execution, though passed by another court. the learned district munsif failed to take note of this important change made in the relevant provision of the civil procedure code. hence the civil revision petition is allowed, the order passed by the learned district munsif is set aside and the learned district munsif.....
Judgment:
ORDER

Ismail, J.

1. This is a petition to revise the order of the learned District Munsif, Tenkasi, dated 21-7-1977 in E. A. No. 128 of 1976 in O. S. No. 20 of 1974. Admittedly certain suits instituted by the petitioner against the respondent on the file of the Court of the District Munsif, Tenkasi are pending. Equally admittedly the respondent had obtained a decree against the petitioner in O. S. No. 20 of 1974 on the file of the Sub Court of Tirunelveli. It is not again disputed that the decree in O. S. No. 20 of 1974 on the file of the Sub Court, Tirunelveli, had been transferred for execution to the court of the District Munsif, Tenkasi. The consequence is that before the District Munsif, Tenkasi, are pending the suits filed by the petitioners against the respondent herein and the execution proceedings in O. S. No. 20 of 1974. It is against the background of these facts, the petitioner filed E. A. No. 128 of 1976 under Order 21 Rule 29 C. P. C. for stay of execution proceedings in O. S. No. 20 of 1974. The learned District Munsif by the impugned order dismissed the application. Hence the civil revision petition.

2. The sole ground on which the learned District Munsif dismissed the execution application filed by the revision petitioner is that the decree in O. S. No. 20 of 1974 on the file of the Sub Court of Tirunelveli was not passed by the District Munsif and therefore he had no competency to stay the execution proceedings of that decree. In coming to this conclusion, obviously the learned District Munsif has overlooked the amendment made in Order 21 Rule 29 C. P. Code, by Central Act 104 of 1976. After the amendment, Order 21 Rule 29 reads as follows:--

'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 itgrants stay without requiring security, record its reasons for so doing.' As a result of the amendment, the court acquires competency to stay not only the decree which it passed, but also the decree which had been transferred to it for execution, though passed by another court. The learned District Munsif failed to take note of this important change made in the relevant provision of the Civil Procedure Code. Hence the civil revision petition is allowed, the order passed by the learned District Munsif is set aside and the learned District Munsif is directed to dispose of EA No. 128 of 1976 on merits on the basis that he has the jurisdiction to stay the execution of the decree in O. S. No. 20 of 1974, because that decree had been transferred to his court for execution. There will be no order as to costs in this petition.


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