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IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.320 of 2021
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1. Basant Kumar @ Basant Kumar Sah, Son of Late Jhabulal Singh @ Jhabbu
Lal Sah, Resident of Village - Didhwa Tola, Khajuhatti, P.O. - Khajuhatti,
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P.S. - Baikhundpur, District - Gopalganj.
2. Archana Verma, Wife of Asimkant Verma, Resident of Village - Didhwa
Tola, Khajuhatti, P.O. - Khajuhatti, P.S. - Baikhundpur, District - Gopalganj.

... ... Petitioner/s

Versus
Harendra Manjhi, Son of Late Jagrup Manjhi, resident of Village - Didhwa
Tola, P.O.- Khajuhatti, P.S. - Baikhundpur, District - Gopalganj.

... ... Respondent/s

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Appearance :
For the Petitioner/s : Mr. Pankaj Kumar Dubey, Advocate
For the Respondent/s : Mr. Akshay Ashish, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 06-03-2024

Heard learned counsels for the parties on the point of

admission and I intend to dispose of the instant petition at the

stage of admission itself.

2. The instant petition has been filed by the petitioners

under Article 227 of the Constitution of India for setting aside

the order dated 13.04.2021 passed by learned Sub Judge-10th,

Gopalganj in Execution Case No. 42 of 2017 whereby and

whereunder the application dated 10.03.2021 filed by the

petitioners under Order XXI Rule 26 and 29 along with Section

151 of the Code of Civil Procedure (hereinafter ‘the Code’) has

been rejected.

3. Briefly stated, the facts of the case are that the

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respondent is the plaintiff before the learned trial court and filed

Title Suit No. 300 of 2015 in which the petitioners were made

defendants and the plaintiff sought declaration of title,

ownership and interest over the suit property along with other

reliefs. Title Suit No. 300 of 2015 was decreed ex-parte on

31.10.2017 directing the defendants/petitioners to vacate the suit

land and give its possession to the plaintiff/respondent.

Thereafter, the plaintiff/respondent moved before the learned

Sub Judge, Gopalganj and filed Execution Case No. 42 of 2017

for execution of the decree dated 31.10.2017 passed in Title Suit

No. 300 of 2015. However, the defendants/petitioners filed an

application under Order IX Rule 13 for setting aside the ex-

parte decree against the defendants vide Misc. Case No.51 of

2018 dated 13.03.2018 and the said miscellaneous case is still

pending before the learned subordinate court. The petitioners on

receiving summons appeared in Execution Case No. 42 of 2017

and filed their show cause dated 16.01.2019 mentioning the fact

about filing of application under Order IX Rule 13 of the Code

and prayed that till the disposal of Misc. Case No. 51 of 2018,

the proceedings of Execution Case No. 42 of 2017 might be

stayed. Both the cases are pending before the court of learned

Sub Judge, Gopalganj but the learned Sub Judge did not pass
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any order in Misc. Case No. 51 of 2018 and rather it rejected the

application filed under Order XXI Rule 26 and 29 by the

petitioners in Execution Case No. 42 of 2017 vide the impugned

order dated 13.04.2021. The said order is under challenge before

this Court.

4. The learned counsel appearing on behalf of the

petitioners submits that the continuation of Execution Case No.

42 of 2017 without passing any order in Misc. Case No. 51 of

2018 is illegal and without jurisdiction. Learned subordinate

court failed to consider that the decree and the order passed in

Title Suit No. 300 of 2015 were ex-parte and the petitioners

have filed an application for setting aside the ex-parte decree

and order and without hearing the said application, further

proceeding in the execution case filed by the respondent is

highly objectionable. Learned counsel further submits that the

learned subordinate court ought not to have proceeded with the

execution case of the respondent without deciding the

miscellaneous case of the petitioners and it shows complete lack

of application on part of the learned Subordinate Judge. When

the decree and order of the title suit have been passed ex-parte,

the petitioners have every right to challenge it according to the

provisions of the Code but the said fact escaped from the mind
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of the learned trial court. Learned counsel further submits that

the learned executing court did not take into consideration the

fact that sufficient cause was shown by the petitioners to stay

the execution. Learned executing court has also not considered

the fact that Misc. Case No. 51 of 2018 was pending before it

which was filed against the respondent/decree holder by the

petitioners/judgment debtors and during pendency of such case,

it was incumbent upon the learned executing court to stay the

execution proceedings.

5. On the other hand, learned counsel appearing on

behalf of the respondent submits that there is no infirmity

attached with the impugned order and the same is quite

sustainable. Learned counsel further submits that the petitioners

want to delay the proceedings and further want to deny the fruits

of the decree to the respondent. The petitioners deliberately did

not join the proceedings in the suit despite proper service of

notice and have filed the miscellaneous case under Order IX

Rule 13 of the Code on flimsy grounds and are not pursuing the

said case. The petitioners want to stay the proceedings for

indefinite period which could not be permitted. The petitioners

have failed to point out any infirmity in the decree and hence it

should be executed as such.

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6. I have given my thoughtful consideration to the

facts of the case as well as the rival contentions of the parties.

The petitioners moved an application under Order XXI Rule 26

and 29 of the Code which read as under:-

“26. When Court may stay execution.—(1) The

Court to which a decree has been sent for
execution shall, upon sufficient cause being
shown, stay the execution of such decree 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 in respect of the decree or the
execution thereof, for an order to stay
execution, or for any other order relating to the
decree or execution which might have been
made by such Court of first instance or
Appellate Court if execution had been issued
thereby, or if application for execution had
been made thereto.
(2) Where the property or person of the
judgment-debtor has been seized under an
execution, the Court which issued the execution
may order the restitution of such property or
the discharge of such person pending the result
of the application.
(3) Power to require security from, or impose
conditions upon, judgment-debtor.—Before
making an order to stay execution, or for the
restitution of property or the discharge of the
judgment-debtor, 1[the Court shall require]
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such security from, or impose such condition

upon, the judgment-debtor as it thinks fit.
29. Stay of execution pending suit between
decree-holder and judgment-debtors.—Where a
suit is pending in any Court against the holder
of a decree of such Court 2[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:
2[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. The provision of Order XXI Rule 26 of the Code

confers power to the executing court to stay the execution of

decree for a reasonable time on sufficient cause being shown to

enable the judgment debtor to apply to the court by which the

decree was passed or to any court having appellate jurisdiction

in respect of decree or the execution thereof, for an order to stay

execution. Obviously the executing court cannot grant stay for

indefinite period and could have granted stay only to enable the

judgment debtor to approach the court of competent jurisdiction

seeking relief against the decree which is being executed.

8. Since the petitioners have already filed a

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miscellaneous case under Order IX Rule 13 of the Code for

setting aside the ex-parte decree, there could be no application

of Order XXI Rule 26 of the Code in the facts of the present

case.

9. Similarly, Order XXI Rule 29 of the Code provides

that when any suit is pending against the decree holder on the

part of the person against whom the decree was passed, the

executing court may stay execution of the decree until pending

suit has been decided. Again in the present case no suit is

pending between the parties though a miscellaneous case is

pending for setting aside the ex-parte decree. Moreover, even in

a petition under Order XXI Rule 29 of the Code, the petitioner

must show sufficient cause to get the benefit. Unless sufficient

cause is shown to stay the execution case, the relief under Order

XXI Rule 29 of the Code cannot be granted. In this regard,

decision of a Co-ordinate Bench of this Court in the case of

Mukti Nath Prasad Vs. Sushma Devi & Ors., passed in CWJC

No. 20623 of 2013 may be referred wherein grant of stay of

execution proceeding for indefinite period was deprecated in

similar circumstances.

10. Thus, in view of the aforesaid facts and

circumstances and discussion made so far, I am of the

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considered opinion that the petition filed by the petitioners

under Order XXI Rule 26 and 29 read with Section 151 of the

Code in Execution Case No. 42 of 2017 was simply not

maintainable and the petitioners should have moved their

application in Misc. Case No. 51 of 2018 filed under Order IX

Rule 13 of the Code for setting aside ex-parte decree and order

of the title suit.

11. For the aforesaid reason, I do not find any

infirmity in the impugned order dated 13.04.2021 passed by

learned Sub Judge-10th, Gopalganj in Execution Case No. 42 of

2017 and the same is affirmed.

12. Accordingly, the instant petition stands dismissed.

13. However, this Court has not made any comments

on the merits of the case and the learned trial court is directed to

dispose of the miscellaneous petition filed by the petitioners

within a period of six months from the date of

receipt/production of a copy of this order.

(Arun Kumar Jha, J)

balmukund/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 11.03.2024
Transmission Date NA