Order XXI, CPC deals generally with the execution of decrees and orders. That order is divided into several topics, each topic containing a number of rules. The first four topics cover rules 1 to 25 and the fifth topic, namely, stay of execution comprises 4 rules, namely, rules 26 to 29.
A perusal of these rules will show that the first three rules i.e. rules 26 to 28 deal with the powers and duties of a court to which decree has been sent for execution.
UNDER RULE 26, that court can stay the execution of the decree transferred to it for execution for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction over the former for an order to stay execution or for any other order relating to the decree or execution which might have been made by the court of first instance or the appellate court. It will be seen, therefore, that under rule 26 the transferee court has a limited power to stay execution before it.
Moreover, under sub-rule (2) if any property is seized by it in the course of execution, it may even order the restitution of the property pending the result of the application made by the judgment-debtor to the court of the first instance or to the appellate court.
RULE 27 SAYS that any such restitution made under sub-rule (2) of rule 26 will not prevent the property of the judgment-debtor from being retaken in execution of the decree sent for execution.
RULE 28PROVIDES that any order of the court by which the decree was passed, in relation to the execution of such decree, shall be binding upon the court to which the decree was sent for execution.
RULE 29 DEALS with a different situation. The rule is 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.”
It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the, instance of the judgment-debtor against the decree-holder. That is a condition under which the court in which the suit is pending may stay the execution before it. But there is a snag in that rule. It is not enough that there is a suit pending 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 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. 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 emphasised by rule 26 already referred to.
Narsidas Nathubhai Vohra v. Manharsing Agarsing Thakor (1931) 33 BOMLR 370
In the case the Bombay High Court made observations : “If the execution of a decree is transferred for execution to another court and a suit is brought in the Court in which the execution proceedings were first started against the holder of a decree of that Court, the Court in which the suit is brought would have jurisdiction to pass an Order under Order XXI, rule 29, though the execution proceedings may be actually pending before another Judge to whom the execution proceedings may have been transferred by the Court.”
In order to understand these observations, we must know the facts of that case. One Narsidas obtained a money decree against Manharsing in the court of the First Class Subordinate Judge, Ahmedabad. The principal Subordinate Judge of that court was Mr. Jhaveri and the Joint Subordinate Judge was Mr. Yajnik. Narsidas filed an application for executing the decree in that court. The judgmentdebtor Manharsing filed a suit in the same court for setting aside the decree against him.
Thus simultaneously there were two proceedings in the same court namely the court of the First Class Subordinate Judge, Ahmedabad between the two parties-one being a suit filed by the judgment-debtor against the decree-holder and the other being an execution proceeding by the decree-holder against the judgment-debtor in respect of a decree passed by the same, court. That brought in directly the provisions of Order XXI rule 29 and there was no dispute that the execution proceeding could be stayed.
The, question, however, was whether Mr. Yajnik before whom the suit was pending could stay the execution of the decree which was pending before Mr. Jhaveri. It was contended that Mr. Yajnik had no jurisdiction to pass an Order. Under Order XXI rule 29 as the execution proceedings were not pending before him but were pending before the First Class Subordinate Judge Mr. Jhaveri. This contention was over- ruled.
It was pointed out that though there were two Judges attached to the court, the court was one and Order XXI rule 29 did not refer to any individual Judge but to the court. Therefore, either Judge of the court in charge of the suit was capable of staying the execution in that court regardless of the Judge before whom the execution was pending. It is in that context that the above observations were made.
The observations contemplate a case where after the institution of the execution proceeding in the First Class Subordinate Judges’ Court the same is transferred in due course of distribution of business, to another Judge attached to that Court. Some little confusion is created by the words ‘another court’ when they first appear in the above observations.
The words ‘another court’ really stand for ‘another Judge of that court’ as it clear from the last clause of the very sentence. Having made the above observations, the court further observed “It is not, therefore, necessary in our opinion that the execution proceedings must be pending before the same Judge before whom the suit is pending. It is sufficient if the suit is pending in any court against the holder of a decree of such court.”
Shaukat Hussain Alias Ali Akram vs Smt. Bhuneshwari Devi (Dead)): 1973 AIR 528, 1973 SCR (1)1022