ORDER
Madan Mohan Prasad, J.
1. This application in revision is directed against an order refusing to stay execution under Order XXI. Rule 29 of the Code’ of Civil Procedure (hereinafter to be referred to as ‘the Code’).
2. It appears that the opposite party second set and the father of petitioners 1 and 2 filed a title suit (Title Suit No. 136 of 1960) in the court of the 2nd Munsif, Chapra, against the opposite party first set for a declaration of their title to some lands alleged to have been taken in settlement from the landlord and recovery of possession thereof. The Opposite Party first set defendants contested the suit and claimed to have taken settlement of the lands from the other defendants, who are said to have taken settlement of those lands from the zerpeshgidars of the landlord. The suit was decreed by the trial Court. As against that there was an appeal (Title Appeal No. 2/28 of 1964) which was allowed and the decree passed by the trial Court was set aside. The Opposite Party thereafter levied execution of the decree of the appellate court for costs and filed a petition under Section 144 of the Code for restitution by delivery of possession of the lands in question. This was treated as a miscellaneous case (Misc. Case No. 28 of
1972). In this proceeding, the petitioners filed an application for stay of the restitution proceeding under Order XXI, Rule 29 of the Code till the disposal of the title suit (Title Suit No. 7 of 1974) which they had filed for a declaration that the decree passed in Title Appeal No. 2/28 of 1964 was null and void on the ground that the petitioners were not properly represented before the court. It was said that after the decree of the trial court, the petitioners had attained the age of majority but the appellants had not so impleaded them as parties to the appeal, but as minors under the guardianship of their mother. The mother did not properly represent the petitioners in the appeal aforesaid and the decree was tainted with fraud, collusion and gross negligence. The learned Munsif rejected the prayer. Hence, this application.
3. Mr. Jaleshwar Prasad appearing for the petitioners has raised two points; firstly, that in view of the provisions of Order XXI, Rule 29 of the Code, it must be deemed to be a mandatory duty of the Court to stay execution provided the requirements of the rule are fulfilled and secondly, that in the present case the learned Munsif has erred in law in applying the principle of injunction under Order XXXIX of the Code to this case and his order, therefore, is fit to be set aside. I must straightway say that there is no merit in either of these contentions.
4. The argument of the learned counsel to the effect that the provision of Rule 29 of Order XXI of the Code is mandatory cannot be accepted at all. He has not cited any authority in support of his proposition. The provision of Rule 29 of Order XXI of the Code 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 has been urged that the word ‘may’ used herein should be read as ‘shall’ and it is urged that the learned Munsif had no option but to stay the execution. According to Mr. Prasad there were just two conditions which had to be fulfilled in order to make it obligatory on the part of the court to stay the execution. They were, firstly, that the suit should be pending in the court which had passed the decree under execution and secondly that the suit should have been filed by the person against whom the earlier decree was passed. Once these two requirements are fulfilled; it is said, the Court had no option but to grant stay. In support of his argument, learned Counsel has placed reliance on two decisions one
in the case of Hansrai v. Satnarain, (AIR 1957 Rai 2191 and the other in the case of Smt. Ram Kumari Devi v. Tarkeshwar Nath Pandey, decided by a learned single Judge of this Court (1974 Bihar Bar Council Journal 710) = (AIR 1975 Pat 110). Neither of these two decisions supports the argument of the learned counsel viz., that once these two requirements are fulfilled, it becomes obligatory on the part of the court to grant stay. It appears that the decision in the case of Hansrai (Supra) was relied upon by S. P. Sinha, J. in the latter case of Smt. Ram Kumari Devi v. Tarkeshwar Nath Pandey. The observation in Hansraj’s case upon which reliance has been placed by learned Counsel for the petitioners is as follows and it was also quoted in the case of Smt. Ram Kumari Devi (Supra):–
“All that is required for the application of Order XXI, Rule 29 is, (1) that the suit should be pending in any court against the holder of a decree of that very court, (2) and that the suit should have been filed by the person against whom the earlier decree was passed. In such a case, it is open to the court to stay execution of the decree until the pending suit has been decided on such terms as to security or otherwise as it thinks fit.”
4-A. It is obvious from the latter sentence in the passage cited above that once these requirements are fulfilled, the provision of Rule 29 of the Code is attracted and thereafter it is open to the court to stay the execution. It will appear that in both the cases aforesaid, the learned Judges were not called upon to decide as to whether once the two requirements are fulfilled, it becomes obligatory on the part of the court to stay the execution. In the case of Hansrai, the argument was that an order under Rule 29 of the Code could be passed only in execution proceeding and could not be passed by the court, before whom the subsequent suit was filed, in the proceeding of that suit. This contention was not accepted. In the case of Srimati Ram Kumari Devi also, the argument was that the order under Order XXI, Rule 29 of the Code could be passed only in the suit and not in the execution case. The learned Judges were, therefore, considering as to what were the requirements to be fulfilled before an order under Rule 29 of the Code could be passed. These decisions are thus of no avail to the petitioners.
5. In my view, and it is well settled, the power of the Court under rule 29 of the Code is discretionary. I have already referred to the observation of Wanchoo, C. J., in the case of Hansraj where the learned Chief Justice said that in such a case “it is open to” the court to stay the execution. In the case of Kan-
nammal v. Muthukumaraswami Chetty, (AIR 1936 Mad 102). it has clearly been stated by Beasley, C. J., “the rule is not an imperative one; and the Court has a discretion either to grant the relief asked for, namely, stay of execution of the decree, or to refuse it”. In the case of Anop Chand v. Hirachand, (AIR 1962 Raj 223), a Division Bench of that Court also said: “it is clear from the wordings of Rule 29 of Order 21 that the power given to the court is discretionary. ……………”
In my view, the word ‘may’ occurring in Rule 29 of the Code cannot be read as ‘shall’ and clearly indicates that the power of the court is discretionary. In the case of Shaukat Husain v. Smt. Bhu-neshwari Devi, (AIR 1973 SC 528), their Lordships were considering the provision of Rule 29 of the Code and after quoting the rule said as follows:–
“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.”
Their Lordships say that once these conditions are fulfilled, the Court ‘may’, and do not say that it ‘shall’ stay the execution. The argument of the learned counsel to the contrary cannot therefore, be accepted.
6. The second grievance of the learned counsel is that the court below has adopted wrong principles in deciding the matter, namely, principles of injunction which do not apply to a case of stay of execution. The differences between an order of injunction and order of stay are well known to need repetition. In one case, it is an order against the person restraining him from executing a decree: in the other case, it is a direction to the court to stay the proceeding. The argument of the learned counsel is based on the statement by the court below to the following effect:–
“Considering all the facts and circumstances in this case I find and hold that the balance of convenience is not in favour of the O. Ps. in T. S. No. 7/74.”
On this basis, the argument, advanced firstly is that the court below has considered only the “balance of convenience” and nothing else. I am afraid, the argument is not well founded on facts. The court below has in another part of the order referred to the statement in the petition to the effect that the petitioners were not represented in the previous title suit and title appeal and the judgments of the those courts were tainted
with fraud, collusion and gross negligence. It has also noted the argument that the petitioners claimed to have attained the age of majority when the title suit was going on in the trial court and that their mother-guardian was very much shocked by the premature death of her husband and hence she could not represent the petitioners. The learned Munsif said that even on these statements, at best, the decree would be voidable and it is a good decree till it is set aside. He has also stated that nothing regarding fraud and collusion had been argued before him and hence he was convinced that the petitioners had not made out a” case for stay. It is thus obvious that the court below has considered questions other than “balance of convenience” as well. It seems to have considered whether there was any proof prima facie of the case made out by the petitioners in Title Suit No. 7 of 1974.
7. Learned counsel has not been able to cite any authority for the proposition urged next that the consideration of convenience is a matter extraneous to the question of stay of a proceeding. What are the principles which a court should keep in mind in deciding a matter of stay under Order XXI. Rule 29 is a question which has not been exhaustively answered in any decided case to which my attention has been drawn or which I have come across. There are number of cases, however, which have well settled the guideline in respect of stay of execution under other provisions of the Code, It is well known that a mere filing of an appeal against a decree is by itself not a good ground for stay of execution under Order 41. Rule 5 of the Code. The petitioner there has to make out “sufficient cause”. Such a cause is said to have been established if the party is able to prove that he would incur substantial loss, that there are fairly arguable questions and thus a substantial case to be considered and that the petitioner has come without unreasonable delay. There are some cases which I have come across to which I will refer hereinafter which give some indication in respect of the guideline. The earliest case is that of Mittun Bibee v. Buzloor Khan, (1867) 8 Suth WR 392. In that case the application was not supported by any affidavit nor was there any matter except the allegations of the petitioner in the plaint. The Principal Sudder Ameen came to the conclusion that it did not appear probable that the plaintiff would succeed in the suit. Their Lordships said that the application was not one which could be granted or entertained without an affidavit or satisfactory proof of the complaints alleged. It was observed that it was for the petitioner to support the allegations by evidence upon which the court could act. In
the case of Anup Chand v. Hirachand, (AIR 1962 Raj 2231 (Supra), their Lordships said the following with regard to the provision of Rule 29 of the Code:–
"This rule is based on the principle that a judgment-debtor may not be harassed if he has a substantial claim against the decree-holder which is pending for decision of the court executing the decree. ............ If the court is of the view that there is some substance in the claim, it may order for the stay of the execution. ..........."
It will be noticed that the aforesaid points which are said to be matters for consideration are none other than those which apply to stay of executions in general. I venture, therefore, to think that the principles which govern stay of execution in general ought to be the principles which would govern the stay of execution under Order XXI, Rule 29 of the Code. I base my conclusion not merely on what has been stated before but also on the fact that Rule 29 of Order XXI is one of the rules in the part dealing with stay of execution beginning with Rule 26 and ending with Rule 29- The legislature cannot be deemed to have in mind any different principles to be adopted in respect of Rule 29 of the Code. It will be noticed that in Rule 26 of the Code also it is laid down that the Court to which the decree has been sent for execution shall, upon “sufficient cause” being shown, stay the execution. There is no doubt that no such words as ‘sufficient cause being shown’ have been mentioned in Rule 29. Still it cannot be said in view of the power being discretionary that the court was bound to stay the execution even without sufficient cause being there.
8. Learned counsel for the opposite party has drawn my attention to a decision in the case of Judhistir Jena v. Surendra Mohanty, (AIR 1969 Ori 2331. In that case the learned single Judge of the Court said:–
“The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the decree might succeed. Such suits are also of a very precarious nature. The allegations therein ordinarily would be that the previous decree was obtained by fraud or collusion or that the decree was not binding on the present plaintiff as the transactor entered into by the judgment-debtor was tainted with immorality. These are all suits of uncertain and speculative character. Most of these cases are likely to fail the onus being very heavy on the
plaintiff to establish fraud and similar charges. That being the position, a person should not be deprived of the fruits of his decree merely because suits of frivolous character are instituted and litigants are out after further series of litigations. The decree must be allowed to be executed, and unless an extraordinary case is made out no stay should be granted. Even if stay is granted, it must be on suitable terms so that the earlier decree is not stifled.
NO hard and fast rule can be laid down in what cases stay would be granted or refused. But as has already been stated, a rigorous test is to be applied and in most of the cases prayer for stay is bound to be refused.”
I respectfully concur in the view that the fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits thereof, and, in my view, unless there is “sufficient cause”. I need not however, go as far as to say that in most of the cases it should be refused and a very rigorous test ought to be applied for deciding as to whether stay should be granted or refused. In my view, as I have said above the question as to whether sufficient cause has been made out should be the guiding principle in deciding the question.
9. Learned counsel for the opposite party raised another important question which is one of first impression. It was urged that Order XXI, Rule 29 of the Code relates to stay of execution and not to stay of a proceeding for restitution. It is stated at the bar that there is no decided case which answers one way or the other the question whether Rule 29 has any application to an application for restitution under Section 144 of the Code. I have also not been able to lay my hand on any direct decision on the point. I have, however, after careful consideration come to the conclusion that the provision of Rule 29 of the Code applies as much to an application for execution as to an application for restitution, MY grounds are the following:–
It will appear that in the Code of Civil Procedure, 1882, there was a provision under Section 583 of that Code to the following effect:–
“When a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal under this chapter desires to obtain execution of the same, he shall apply to the court which passed the decree against which the appeal was preferred and such court shall proceed to execute the decree passed in appeal, according to the rules hereinbefore prescribed for execution of decrees in suits.”
The question of restitution was one dealt with in that provision by way of execution. That is now with suitable amendment the subject-matter of Section 144 of the Code which provides for an application for restitution and this section is under Part 11 dealing with “miscellaneous”. The mere fact that an application under Section 144 of the Code is no more in the Chapter on execution does not change the nature of the application itself. It still remains an application in execution. In fact, it is now well settled that an application for restitution is an application in execution. In the case of Bhaunath Singh v. Kedar Nath Singh, (AIR 1934 Pat 246 (2)) (FB) a Full Bench of this Court held that an application for restitution and for mesne profits is an application in execution and is therefore, governed by Article 182 of the Limitation Act The law laid down in this case was approved by the Supreme Court in the case of Mahijibhai v. Manibhai (AIR 1965 SC 14771 The majority of the learned Judges deciding this case held that:–
“When a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie, therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree.”
It thus stands well established that an application for restitution is an application for execution. There is thus no reason why provision of Rule 29 of Order XXI of the Code should not apply to an application for restitution as much as it does to an application for execution. Execution can be stayed and so can a proceeding for restitution under Rule 29 afore-said.
10. The only other point raised by learned Counsel for the opposite party in the present case is that the decree which was under execution in the present case was that of the appellate court and not of the learned Munsif and, therefore, the learned Munsif had no jurisdiction at all to entertain the application under Order XXI, Rule 29 of the Code. There is no
substance in this contention. Section 37 of the Code lays down that the expression ‘Court which passed a decree’, shall in relation to the execution of decrees, be deemed to include, where the decree to be executed has been passed in the exercise of appellate jurisdiction the court of first instance. Section 38 of the Code next provides that a decree may be executed either by the “court which passed” it or by the court to which it is sent for execution. The term ‘the court which passed a decree’ thus in the case of an appellate decree would include the court of first instance for the purpose of execution. It is, therefore, immaterial that the decree in the present case was that of the appellate court in respect of which the application for execution for costs and restitution by delivery of possession had been filed. No authority is needed for the proposition the point being so clear, I may however mention a decision in the case of S. M. Nagori v. Baburao, AIR 1956 Madh Bha 229. In that case the High Court had awarded costs in second appeal and remanded the case to the trial court for fresh decision. The defendant had made an application for execution of the decree for costs. The question was whether the execution for costs awarded by the High Court could be stayed under Order XXI, Rule 29 of the Code. The learned Judge took the same view as I have done in this case and held that it could. There is thus no substance in this objection raised by the learned counsel.
11. Lastly, learned counsel for the opposite party urged that assuming that the court below had committed an error of law in not considering other matters, matter other than balance of convenience pertaining to the question of stay, an error of law would not enable this Court to interfere with the order of the court below unless the error was of jurisdictional nature. He has relied on the decision in the case of D. L. F. Housing and Construction Co. (P.) Ltd, v. Sarup Singh, (AIR 1971 SC 2324) which was reiterated in the subsequent case of The Managing Director (MIG) Hindustan Aeronautics Ltd. v. Ajit Prasad, (AIR 1973 SC 76). In view of what I have said earlier on the point of the consideration of the matter by the learned Munsif, the question does not arise. But even if it be held that the learned Munsif had omitted to consider other relevant materials, it would still be an error of law not relating to the question of jurisdiction. The learned Munsif had the jurisdiction which is not disputed and even if he had decided the case without considering other relevant matters, the decision would be one wrong in law and yet not without jurisdiction.
12. For all the reasons mentioned above, I do not find any substance in this application, it is accordingly dismissed with costs.