Patna High Court
Manzoor Hussain vs Md. Nazir Ahmad on 20 January, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.29 of 2024
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1. Manzoor Hussain, S/o Mahboob Hussain, resident of Mohalla-Shah Fasahat
Ka Maidan, P.S.-Chowk, District-Patna.
2. Mahfooz Hussain Arif, S/o Mahboob Hussain, resident of Mohalla-Shah
Fasahat Ka Maidan, P.S.-Chowk, District-Patna.
3. Matloob Hassan Shahzada, S/o Mahboob Hussain, resident of Mohalla-Shah
Fasahat Ka Maidan, P.S.-Chowk, District-Patna.
... ... Petitioner/s
Versus
1. Md. Nazir Ahmad, S/o Late Noor Mohammad, resident of Mohalla-Shah
Fasahat Ka Maidan, P.S.-Chowk Patna City, District-Patna.
2. Md. Khursheed Anwar, resident of Mohalla-Shah Fasahat Ka Maidan, P.S.-
Chowk Patna City, District-Patna.
3. Md. Parwege Anwar, resident of Mohalla-Shah Fasahat Ka Maidan, P.S.-
Chowk Patna City, District-Patna.
4. Md. Jawed Anwar, resident of Mohalla-Shah Fasahat Ka Maidan, P.S.-
Chowk Patna City, District-Patna.
5. Nausad Anwar Ansari, resident of Mohalla-Shah Fasahat Ka Maidan, P.S.-
Chowk Patna City, District-Patna.
6. Md. Shamshad Anwar, resident of Mohalla-Shah Fasahat Ka Maidan, P.S.-
Chowk Patna City, District-Patna.
7. Md. Shahnawaj Anwar, resident of Mohalla-Shah Fasahat Ka Maidan, P.S.-
Chowk Patna City, District-Patna.
8. Shaheen Jabeen Wife of Md. Jahagir Alam, resident of Mohalla-Shah
Fasahat Ka Maidan, P.S.-Chowk Patna City, District-Patna.
9. Mahajabeen Naz, D/o Md. Nazir Ahmad, resident of Mohalla-Shah Fasahat
Ka Maidan, P.S.-Chowk Patna City, District-Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Arvind Kumar, Advocate
For the Respondent/s : Mr.
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 20-01-2025
The record has been taken up on mentioning being
made on behalf of the petitioners.
2. Heard learned counsel for the petitioners and I
Patna High Court C.Misc. No.29 of 2024 dt.20-01-2025
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intend to dispose of the instant petition at the stage of admission
itself.
3. The petitioners are aggrieved by the order dated
30.11.2023
passed by the learned Munsif, Patna City in
Execution Case No.08 of 2017 whereby and whereunder the
learned executing court dismissed the petition dated 02.08.2023
filed by the petitioners under Order 21 Rule 29 read with
Section 151 of the Code of Civil Procedure (hereinafter referred
to as ‘the Code’).
4. The learned counsel for the petitioners submits that
the learned executing court has not considered the observation
made by the learned Single Judge of this Court in the judgment
dated 11.08.2017 passed in Second Appeal No.325 of 2000
wherein it has been observed that ‘none of the findings recorded
in this suit for eviction, at any stage, shall prejudice the case or
claim of either of the parties over the suit property in a suit for
possession over the suit property on the basis of title before
competent court in accordance with law’. The learned counsel
further relied on two decisions of the Bombay High Court, first
in the case of Super Max International Pvt. Ltd and another
vs. State of Maharashtra and another reported in 2009 (2)
Mh.L.J 134 and second in the case of Narsidas Nathubhai
Patna High Court C.Misc. No.29 of 2024 dt.20-01-2025
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Vohra vs. Manharsingh Agarsing Thakor reported in AIR
1931 Bombay 247, to stress the point that power of grant of stay
is discretionary and the learned executing court should have
exercised the discretion in favour of the petitioners since the
title suit of the petitioners is pending and if without disposal of
the title suit, the petitioners are dispossessed in the execution
case, they would be unduly prejudiced and would suffer
irreparable harm.
5. Having perused the record and considered the
submission made by the learned counsel for the petitioners, I am
of the opinion that the impugned order does not need any
interference for the reason that the learned executing court has
discussed all the contentions and rejected the same with a
reasoned and speaking order. There could be no stay of the
proceeding under Order 21 Rule 29 of the Code in the present
situation since the proceedings of title suit and execution are
pending before two different courts.
6. Now, Order 21 Rule 29 of the Code reads as
under :
“29. 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, on the part
Patna High Court C.Misc. No.29 of 2024 dt.20-01-2025
4/8of 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”.
7. It clearly shows two proceedings should be
pending before the same court. This is condition precedent
under which the court in which suit is pending may stay the
execution or pass orders regarding stay till the disposal of the
pending suit.
The Hon’ble Supreme Court in the case of Shaukat
Hussain @ Alim Akram vs. Bhuneshwari Devi (dead) by L.Rs.
reported in (1972) 2 SCC 731 held in paragraph 6 as under :
“6. Order 21 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 four 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 a 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
Patna High Court C.Misc. No.29 of 2024 dt.20-01-2025
5/8apply 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 28 provides 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. And
then we have Rule 29, which 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
Patna High Court C.Misc. No.29 of 2024 dt.20-01-2025
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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. If that was the only condition, Mr Chagla
would be right in his contention, because admittedly
there was a proceeding in execution by the decree-
holder against the judgment-debtor in the Court of
Munsif 1st, Gaya and there was also a suit at the
instance of the judgment-debtor against the decree-
holder in that court. 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”.
8. So far as contention of learned counsel for the
petitioners about the order of the learned Single Judge of this
Court passed in Second Appeal No. 325 of 2000 is concerned,
the same cannot be construed to mean that the learned executing
court is bound to stay the execution proceeding. The order was
meant only for the purpose that while disposing of the claim of
title and possession, any observation made in the second appeal
could not cause prejudice to the claim of either of the parties.
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9. Similarly, the authorities cited by the learned
counsel for the petitioners with regard to power of stay being
discretionary, the facts of the present case are clearly
distinguishable from the facts of the decisions cited supra. In the
case of Super Max International Pvt. Ltd (supra), learned
Single Judge of Bombay High Court has referred to the decision
of the Hon’ble Supreme Court rendered in the case of Atma
Ram Properties (P) Ltd. vs. Federal Motors Pvt. Limited
reported in 2005 (1) SCC 705, wherein the Hon’ble Supreme
Court has discussed the powers of the appellate court and
conditions under which it should grant stay. Evidently the same
is not the case here as the matter is not before the appellate
court. Similarly, in the case of Narsidas Mathubhai Vohra
(supra), only the scope and ambit under Order 21 Rule 29 of the
Code has been discussed. When it has been made clear by the
Hon’ble Supreme Court in the case of Shaukat Hussain (supra)
that two proceedings must be before the same court, there could
be no ambiguity on the scope of the Order 21 Rule 29 of the
Code. Moreover, in the case of Narsidas Nathubhai Vohra
(supra), Hon’ble Division Bench held that the court in which
suit is pending has jurisdiction to pass the order under that rule.
The Hon’ble Division Bench has also held that there is no
Patna High Court C.Misc. No.29 of 2024 dt.20-01-2025
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indication in the rule that the application must be made to the
court in execution proceeding. Therefore, if the courts are
different, in the light of the decision of the Hon’ble Supreme
Court in the case of Shaukat Hussain (supra) that there should
be two simultaneous proceedings in one court, the stay could
not be granted by the executing court.
10. In the light of aforesaid facts and circumstances of
the case, I do not find the impugned order suffers from any
infirmity as the same has been passed after consideration of all
the aspects of the matter and, therefore, the same is affirmed.
11. Hence, I do not find any merit in the instant
petition and, accordingly, the same is dismissed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR CAV DATE NA Uploading Date 21.01.2025 Transmission Date NA
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