ORDER
Ram Nandan Prasad, J.
1. The revision application has been filed against the order dated 19-6-1998 passed by Munsif, Gopalganj in Execution Case No. 5 of 1984 whereby the petition of the petitioner under Order 21, Rule 29 and Section 151 of the Code of Civil Procedure, hereinafter referred to as the ‘Code’ for stay of execution case was rejected.
2. The resume’ of the relevant facts of the case are that the plaintiff-opposite party filed Title Suit No. 169 of 1972 in the Court of Munsif for eviction against the defendant-petitioner on the ground of default in payment of rent and also on the ground of personal necessity of the suit premises. The defendant admitted the tenancy and stated that he was tenant of the plaintiff till 25-3-1972. On 26-3-1972 the plaintiff-opposite party executed a deed of agreement to sell the suit premises in his favour and as such there was no relationship of landlord and tenant nor the plaintiff Was in bona fide need of the suit premises. The petitioner also filed Title Suit No. 556 of 1974 for specific performance of contract against the opposite party before the Sub-Judge, Gopalganj which was pending for disposal.
3. The trial Court decreed the suit and held that the defendant defaulted in payment of rent and also that the plaintiff was in bona need of the suit premises. The petitioner filed Title Appeal No. 33 of 1983 against the judgment and decree of the trial Court. While the appeal was pending, Title Suit No. 556 of 1974 filed by the petitioner for specific performance of contract was decreed against which the opposite party filed First Appeal No. 265 of 1987 which is pending for disposal. The petitioner filed a petition in the title appeal under Order 41, Rule 27 of the Code of Civil Procedure for admitting the judgment passed in Title Suit No. 556 of 1974 as additional evidence which was rejected by the appellate Court. The appeal was subsequently heard on merit and was dismissed and the finding of the trial Court was affirmed. The petitioner filed Second Appeal No. 107 of 1995 against the judgment and ‘decree of the Courts below. The appeal was admitted and substantial question of law was framed that ‘whether the appellate Court committed error of law in rejecting the petition filed
by the appellant under Order 41, Rule 27 of the Code of Civil Procedure and the same has affected the result of the appeal. This Court dismissed the appeal and held that rejection of the petition under Order 41, Rule 27 of the Code did not affect the judgment in appeal. The petitioner challenged the said judgment before the Apex1 Court which was also dismissed, The petitioner thereafter filed a petition under Order 21, Rule 29 and Section 151 of the Code in Execution Case No. 5 of 1984 levied by the decree holder-opposite party for stay of execution case on the ground that the suit for specific performance of contract against the opposite party has been decreed. The executing Court rejected the said petition by the order impugned.
4. Learned counsel for the petitioner submitted that the case of the petitioner was covered under Order 21, Rule 29 of the Code but the Court below without appreciating the legal provision and without assigning any cogent reasons rejected the petition for stay of the execution case. On the other hand, learned counsel for the opposite party submitted that the case of the petitioner was not covered under Order 21, Rule 29 of the Code and as such the Court has rightly rejected the petition of the petitioner for stay of the execution proceeding. .
5. Order 21. Rule 29 of the Code deals with stay of the execution pending suit between the decree holder and the judgment debtor. It says that ‘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 pending suit has been decided.’ From perusal of the said Rule it is obvious that there should be two proceedings in one Court i.e. execution proceeding at the instance of the decree holder and other a suit at the instance of the judgment debtor against the decree holder. In the instant case, the suit for eviction was filed by the plaintiff-opposite party before the Munsif Court, which was decreed and the decree was upheld up to the Apex Court. The petitioner filed the suit for specific performance of contract against the opposite party before the Sub-Judge, Gopalganj which was decreed and first appeal against such decree is pending before this Court. Obviously,
in both the suits the Courts was not the same. Eviction suit was before the Munsif Court and the suit for specific performance of contract was before the Sub-Judge. In the case of Shaukat Hussain alias Ali Akram v. Smt. Bhuneshwari Devi, AIR 1973 SC 528, the Apex Court held that for application of Order 21. Rule 29 of the Code there should be two simultaneous proceedings in one Court i.e. a proceeding in execution of the decree of that Court started at the instance of the decree holder against the judgment debtor and a suit at the instance of the same judgment debtor against the holder of the decree of that Court. Similarly, in the case of Krishdna Singh v. Mathura Ahir, AIR 1982 SC 686 : (1982 All LJ 193) it has been held that the power to stay has to be exercised with great care and only in special cases, the Court which has passed the decree alone has power to stay its execution under Order 21, Rule 29 of the Code. If the execution case is transferred from the competent Court to another Court, the transferee Court will cease to have the jurisdiction.
6. It is evident, in the instant case, that the suit for specific performance of contract was filed by the petitioner before the Subordinate Judge whereas eviction case was filed by the opposite party before the Munsif Court. Therefore, it is obvious that both the suits were not in one Court. Thus, the provision of Order 21, Rule 29 of the Code has no application in the circumstances as there was nothing before the executing Court with regard to suit for specific performance of contract.
7. Learned counsel for the petitioner, however, relied upon a decision in the case of (Mian) Peer Bux v. Mohomad Tahar, AIR 1934 Privy Council 235 wherein it has been held that ‘a contract for sale of immovable property does not of itself create any interest in or charge on such properly. There is therefore no room for application of the English equitable doctrine that a contract for sale of real property makes the purchaser the owner in equity of the estate. Thus, under the law applicable before, insertion of Section 53-A of the Transfer of Property Act, an averment of existence of sale, whether with or without averment of possession following upon the contract was not relevant defence to an action of ejectment.’ Therefore, it is evident that the decision relied upon by the learned counsel for
the petitioner is not on the issue involved in this case. However, after insertion of Section 53-A and for application of Section 53-A of the Transfer of Property Act, it is necessary to show that in pan performance of the contract possession of the suit property has been taken and had done some act in furtherance of the contract. In the case in hand there is nothing on the record to show that the petitioner in part performance of the contract has taken possession of the property in question or had done some act in furtherance of the contract. Besides, question involved in this case is quite different i.e. application of provision of Order 21, Rule 29 of the Code. Therefore, the decision relied upon by the learned counsel for the petitioner has no application, in the facts and circumstances of the case.
8. It is true that the Court has not discussed the provision of law nor has given detailed reasoning for rejecting the petition but since the provision under Order 21, Rule 29 of the Code was not applicable in the facts and circumstances of the case, I do not find any reason to interfere with the order impugned on the ground as indicated above.
9. Thus, on consideration as discussed above, I find no merit in this application. Accordingly, this application is dismissed but without cost.