P.G.Ajithkumar, J.
1. Ext.P14 is an order of the Family Court, Kottayam at Ettumanoor in E.A.No.1 of 2021 in E.P.No.59 of 2016 in O.P.No.796 of 2010. The petitioner, who is the 3rd judgment debtor, filed E.A.No.1 of 2021 under Rule 29 of Order XXI of the Code of Civil Procedure, 1908. The Family Court dismissed E.A.No.1 of 2021 as per Ext.P4. The petitioner has filed this Original Petition under Article 227 of the Constitution of India.
2. On 13.06.2022, this Original Petition was admitted. Pursuant to notice, the respondents entered appearance.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
4. E.A.No.1 of 2021 was filed by the petitioner along with the 2nd judgment debtor seeking to stay the execution proceedings in E.P.No.59 of 2016 on the ground that they have filed O.P.No.247 of 2020 to declare the decree in O.P.No.796 of 2010 null and void. Ext.P2 is the judgment dated 21.12.2010 in O.P.No.796 of 2010. It is based on a compromise. Compromise even dated is Ext.P1.
5. O.P.No.796 of 2010 was filed by the 1st respondent, who is the wife of the 2nd respondent. The O.P. was filed not only against her husband, but also the father and brother of the husband. They together had executed a compromise agreement, Ext.P1 and on accepting Ext.P1, decree was passed as per Ext.P2. The petitioner has filed O.P.No.247 of 2020 alleging that Ext.P1 compromise happened to be executed since the petitioner and the 2nd judgment debtor were misled by playing fraud upon them. O.P.No.796 of 2010 was filed by the 1st respondent on the basis of the allegation that her husband, the 2nd respondent herein, was treating her cruelly and not looking after the affairs of herself or the children. Marriage between respondent Nos.1 and 2 was already separated by a decree of the court.
6. The petitioner would contend that after obtaining such a compromise decree, respondent Nos.1 and 2 started living together. The 1st respondent did not take diligent steps for enforcement of the compromise decree against the 2nd respondent, in relation to the clause in the decree directing the 2nd respondent to transfer the residential flat in his name in Pune in the name of the 1st respondent and the children. Although an execution petition was filed before the court at Pune, the 1st respondent clandestinely withdrew it. She now has filed E.P.No.59 of 2016 with a view to grab the property of the petitioner, in collusion with the 2nd respondent. Thus, the petitioner has played fraud not only upon the petitioner and the 2nd judgment debtor, but also the court.
7. The 1st respondent resisted E.A.No.1 of 2021 by filing a statement of objection. It was contended that without any bona fides the petition was filed and earlier they have raised similar contentions in the execution petition, which were answered against. The petitioner had approached this Court by filing O.P.(FC) No.540 of 2017, which was also dismissed. It was thereafter the petitioner filed E.A.No.1 of 2021 without any basis.
8. Order XXI, Rule 29 of the Code empowers the court in which a suit has been filed against the holder of a decree to grant a stay of execution of the decree. This provision does not empower the Execution Court to order a stay for the reason that a suit has been pending against the decreeholder. For that reason itself E.A.No.1 of 2021 is not entertainable.
9. Ext.P2 judgment is dated 21.12.2010. In terms of Ext.P1 compromise, two fixed deposits were made in the name of the children. Exts.P3 and P4 are the receipts of such deposits. Thereby the parties have acted upon the compromise decree. Ext.P5 is the decree in O.P.(Divorce) No.835 of 2009 dated 10.09.2009 as per which the marriage between respondent Nos.1 and 2 was dissolved. Now, the petitioner would contend that while the said decree of divorce is in force, respondent Nos.1 and 2 started living together. Exts.P8 and P9 were produced to substantiate that contention. Ext.P8 is the ration card and Ext.P9 is the electricity bill paid in the name of the 1st respondent in respect of the residential flat at Pune. The said allegations are totally denied by the 1st respondent. The 2nd respondent did not turn up. Even if the said allegations are true, those are latent incidents, which prima facie cannot be a ground of fraud so as to vitiate the compromise as per Ext.P1. Of course, that is a question to be decided by the Family Court. The other allegation is that the Execution Petition filed by the respondent for getting the flat at Pune transferred, was withdrawn in a clandestine manner and thereafter filed E.P.No.59 of 2016. That also cannot be a ground of fraud played upon the court at the time of passing of decree vide Ext.P2 judgment. Anyhow, that also is a question to be decided by the Family Court in O.P.No.247 of 2020. The said O.P. was filed in 2020; whereas the decree sought to be set aside is dated 21.12.2010. When the petitioner filed the original petition to set aside the decree only after ten years, the pendency of such a case cannot be a reason to stay the execution proceedings.
10. Further, a contention was raised by the petitioner is that the decree in O.P.No.796 of 2010 was not executable.
The grounds of such objection were not exactly the same. The Execution Court turned down the said objection and that order was confirmed by this Court in O.P.(FC) No.540 of 2017.
11. Taking all such aspects into account, we are of the view that the Family Court rightly had dismissed E.A.No.1 of 2021 and refused to stay the proceedings in E.P.No.59 of 2016 in O.P.No.796 of 2010. We find no reason to interfere with that order.
12. Therefore, this Original Petition is dismissed.
