1. Decree-holder in O.S.No.77 of 1983, on the file of Subordinate Judge, Tuticorin, is the revision petitioner.

2. Petitioner herein obtained a decree in the above suit on 29.7.1989. In the suit filed by the petitioner, it wanted relief in respect of various items. Item No.1 related to the ownership of Ambassador Car bearing Registration No.TN.T.9744. In respect of that car, the petitioner herein was declared as the owner, and the respondent herein was directed to surrender possession of the same. Against that portion of the decree which went against the petitioner, the matter is pending in appeal before this Court. Challenging the ownership of the vehicle as declared by the Trial Court, respondent has not filed any appeal.

3. Respondent herein filed another suit as O.S. No.106 of 1987, on the basis of an alleged agreement dated 31.8.1982. That suit was one for recovery of a sum of nearly Rs.2,25,000. A decree was granted to the respondent herein on 5.2.1991. Against that decree, petitioner herein has filed an appeal before this Court, and the same is pending.

4. Petitioner herein thereafter filed E.P.No.46 of 1991, for recovery of the motor vehicle, for which a declaration was given to it.

5. A counter was filed by respondent, stating that since he has filed a suit as O.S.No. 106 of 1987, the decree-holder is not entitled to execute the decree. Along with the counter, he also filed E.A.No.105 of 1991, seeking relief from the executing court to stay the execution of the decree in O.S.No.77 of 1983 under Order 21, Rule 29, C.P.C. A Counter was filed by the decree- holder.

6. By the impugned Order, the Court below stayed further proceedings in execution. It is against that Order, the present Revision Petition is filed.

7. Learned counsel submitted that the executing court exceeded its jurisdiction in staying the execution of the decree. According to him, petitioner herein has obtained a decree and the same is not challenged in any Court, and even the provisions of Order 21, Rule 29, C.P.C. have not been complied with in this case. It was further submitted that execution of a validly obtained decree is not to be stayed for improper reasons.

8. As against the said contention, learned counsel for the respondent submitted that while instituting the suit as O.S.No.106 of 1987, the value of the car was also taken into account. According to him, there was an agreement between the petitioner and the respondent on 31.8.1982. As per that agreement, the petitioner herein was bound to pay a sum of Rs.2,27,106.58.P. Out of the said amount, a sum of Rs.27,106.58.P. was paid towards the value of the car and, therefore, the car belonged to him, and the same is not liable to be seized in execution of the decree. He further said that in the suit O.S.No.107 of 1987 he claimed only the balance amount, and when that suit was decreed, execution could not be proceeded with, and further, the petitioner herein has also filed an appeal challenging the decree and it is, therefore, contended that the provisions of Order 21, Rule 29, C.P.C. are fully complied with.

9. I have heard learned counsel on both sides.

10. The point for consideration is, whether any ground has been made to stay the execution of the decree under Order 21, Rule 29, C.P.C.

11. Order 21, Rule 29, C.P.C. reads thus:-

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 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.

12. As early as in the decision reported in Kannammal v. Muthukumaraswami Chetty, A.I.R. 1936 Mad. 102 [LQ/MadHC/1935/375] the scope of Order 21, Rule 29, C.P.C. was considered, and Beasley, C.J. held thus:-

The object of the rule is that, should a plaintiff in a pending suit succeed therein, then there can be an adjustment of the decree or claim by that plaintiff against the decree obtained against him in the other suit in the same Court without it being necessary for the successful "plaintiff the pending suit to take out execution proceedings. Execution in the other suit is stayed so that the rights of the parties can be adjusted"

But, while considering the Rule, the following principles were also enunciated by the Supreme Court in the decision reported in Shaukat Hussain v. Bhuneshwari Devi, 1972 (2) S.C.C. 731 : A.I.R 1973 SC 528 [LQ/SC/1972/401] . In that case, their Lordships held thus:-

A perusal of Order 21, Rule 29, C.P.C., would reveal 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 he judgment-debtor against the decree-holder. But a mere pendency of a suit is not enough. It is further necessary that the suit must be against the holder of the decree of such court. The words such court are important. In the context of that r ule, these words mean 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.

13. In P.Shanmugham v. K. Manickam, 1980 (2) M.L.J. 383 V. Ratnam,J. (as he then was), following the above said decision of the Supreme Court, held thus:-

Under rule 29 of Order 21, Civil Procedure Code, if a suit by a judgment-debtor is pending in a Court against the holder of a decree of that Court, the execution of the decree may be stayed until the disposal of the suit. It is obvious that this rule is intended to enable the judgment-debtor and the decree-holder to adjust their claims against each other and also to avoid multiplicity of proceedings. The Supreme Court in Shaukat Hussain v. Bhuneshwari Devi, 1972 (2) S.C.C. 731: 1973 (1) S.C.R. 1022 : A.I.R. 1973 S.C. 528, pointed out that the requisite before the rule can be invoked in two simultaneous proceedings in one Court, namely, (1) a proceeding in execution of the decree initiated by the decree-holder; (2) the pendency of a suit at the instance of the judgment-debtor against the holder of the decree of that Court. Rule 29 of Order 21, Civil Procedure Code, is not an imperative one and the court as a matter of exercise of its discretion can either grant the stay asked for or refuse the same.

14. In Smt. Yasodamma and others v. S. Anjaiah, 1986 (1) A.L.T. 93 , Jagannatha Rao, J. (as he then was), held the purpose behind Order 21, R.29, C.P.C. thus:-

The intendment behind Order 21, Rule 29, C.P.C. is the prevention of multiplicity of proceedings and to ensure that the plaintiff can set off or wipe out any amount due by him towards any amount due to him. If the title to the property or possession remains the same, the judgment-debtor cannot-resont to Order 21, Rule 29, C.P.C. merely because he has not put forward a plea which was open to him at the time when the decree was obtained against him, earlier. If such resort to Order 21, Rule 29, C.P.C. in permitted, it would enable judgment-debtors to by pass the provisions of constructive res judicata incorporated in Section 11 C.P.C. and protract the execution proceedings endlessly.

The learned Judge also followed an early decision of the Calcutta High Court in Mahesh Chandra vs. Jogandra Lal, A.I.R. 1928 Calcutta 222, wherein the purpose of the Rule was held thus:-

... the purpose of Order 21, Rule 29 C.P.C. is to prevent (1) the judgment debtor being compelled to satisfy the decree by providing the sum due when it might be proved (after him claim against the decree-holder was finally determined) that on balance, he owed the decree-holder less than the decretal sum of, it might be, nothing at all, and (2) to avoid multiplicity of execution proceedings.

Further, the learned Judge accepted the principles enumiated in the decision reported in Kannammal v. Muthukumaraswami Chetty, A.I.R. 1936 Mad. 102 [LQ/MadHC/1935/375] : 70 MLJ 120 [LQ/MadHC/1935/375] : 43 L.W. 493.

15. It is also settled law that even if all the conditions of Order 21, Rule 29, C.P.C. are complied with, it does not follow that a stay has to be granted. The grant of stay is discretionary and the same will have to be ordered with due care and caution. In Sri Krishna Singh v. Mathura Ahir, 1981 (4) S.C.C. 421 in paragraph 16 of the Reports, (at page 426), their Lordship held thus:-

We are rather amayed to find that the totally unwarranted plea taken by Sri Krishna Singh seems to have found favour with the Civil Judge who readily accepted the prayer of Sri Krishna Singh of staying the execution of the decree without realising the scope and ambit of Order 21, Rule 29. Under this provision, jurisdiction has to be exercised with very great care and only under special cases

(Emphasis supplied)

16. In Subhas Kumar v. Sheo Balak, A.I.R. 1975 Pat. 307 [LQ/PatHC/1975/66] a learned Judge of the Patna High Court held thus:-

"The consideration of convenience is not a matter extraneous to the question of stay of a proceeding.

The principles which govern stay of execution in general ought to be the principles which would govern the stay of execution under O.21, Rule 29 of the Code. The legislature cannot be deemed to have in mind any different principles to be adopted in respect of Rule 29 of the Code. Though words such as sufficient cause being shown have not 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 .."

17. In Paramananda Panda v. Krishna Chandra Panda, A.I.R. 1990 Orissa 188 it was held thus:-

"In this suit for declaration that the decree passed in earlier title suit filed by plaintiffs father is not binding on the plaintiff on the ground that the father wantonly omitted to implead the plaintiff, the plaintiffs application for stay of execution of the decree in the title suit though styled as made under Section 94 of C.P.C. is in fact one covered by O.21, R.29, C.P.C. That being so, conditions under the said R.29 should be satisfied for obtaining the relief thereunder. In the absence of any extraordinary circumstance the extraordinary relief under the provision could not be granted" (Italics supplied)

In that case, their Lordships followed an earlier decision of the same High Court reported in Judhistir v. Surendra, A.I.R. 1969 Orissa 233 wherein it was held thus:-

"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 transaction 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."

18. Sir John Woodroffe and Ameer Ali, in Code of Civil Procedure - 3rd Edition - Volume 3, at page 2040, have stated thus:-

"Rule 29 is applicable only to a decree-holder and the judgment-debtor and not to an objector who is not a party to the suit between the decree-holders and the judgment-debtor and he cannot seek stay of the execution under the said order. A decree passed by a competent court should be allowed to be executed and unless a strong case is made out on a cogent grounds no stay should be granted. 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.

The Court has competency to stay not only the decree which it passed but also the decree which has been transferred to it for execution, though passed by another Court.

But a rigorous test is to be applied and in most of the cases prayer for stay is bound to be refused, unless a strong case is made out on cogent ground. Even if stay is granted it must be on such terms as to security, etc., so that the earlier decree is not made ineffective due to lapse of time." (Italics supplied)

19. Mulla on Code of Civil Procedure 15th Edition (1996), commenting on O.21, Rule 29, C.P.C., at page 1684, has stated thus:-

"Jurisdiction to stay execution of the decree under O.21, R.29 has to be exercised with great care and only in special cases."

20. A.N.Saha on The Code of Civil Procedure - 5th Edition (1996), at page 1295, has stated thus:-

"Stay of execution pending suit between decree-holder and judgment-debtor has been provided in O.21, Rule 29, C.P.C. For invoking O.21, Rule 29 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. Then the Court may stay execution of the decree. The Court is not obliged to stay even when the requirements of O.21, Rule 29 are fulfilled. It is purely discretionary. The exercise of power of stay under O.21, Rule 29 depends upon facts and circumstances of each case. Even in cases where the prerequisites of O.21, R.29, C.P.C. are satisfied, Court may refuse to grant stay"

21. On the basis of the above settled position of law, let us consider whether any case has been made out for staying execution of the decree, which is not challenged in appeal. The only reason that is mentioned by the respondent is that he has filed a suit for recovery of money. The same was decreed when the matter was pending in appeal.

22. The Supreme Court in Shaukat Hussain v. Bhuvaneshwari Devi, 1972 (2) S.C.C. 731: 1973 (1) S.C.R. 1022: A.I.R. 1973 S.C. 528 has already prescribed the conditions which have to be complied with when an Order is passed under O.21, Rule 29, C.P.C. The first condition is that, there must be simultaneous proceeding, and the second condition is, an execution by the decree-holder must be pending against the judgment-debtor, and the judgment- debtor must have filed a suit against the decree-holder and the same must be pending. According to me, even the first condition has not been complied with in this case. The decree in O.S.No.77 of 1983 was passed on 29.7.1989 and the execution petition was filed on 15.4.1991. O.S.No.106 of 1987 filed by the respondent was already disposed of on 5.2.1991. So, on the date when the execution petition was filed, there was no simultaneous proceeding pending in any Court. According to me, that by itself is sufficient to discard the application under O.21, Rule 29, C.P.C.

23. It is submitted by the learned counsel that in the suit for recovery of money, he has adjusted the value of the car, and only for the balance, a decree has been granted, and he also relied on certain observations in the judgment passed in that case. I do not think that the observations made therein will have any value in executing the decree in O.S.No.77 of 1983. The respondent relies on an agreement dated 31.3.1982. According to him, pursuant to that agreement, he was given ownership of the car and the value of the same was adjusted towards the amount payable to him. According to me, the said contention cannot be availed by him. The petitioner herein filled the suit, admittedly, after the agreement. The suit was filed on 18.2.1983. i.e., after the so called agreement. Inspite of the agreement, petitioner wanted declaration of ownership over the car, and the Court also declared that the plaintiff is the owner. So, in spite of the agreement, the Court having declared that the decree-holder is the owner of the car, and that part of the judgment has become final, the pendency of O.S.No.106 of 1987 cannot be a defence for executing the decree. It is conceded that against that portion of the decree whereby the ownership of the car was given to the petitioner, the respondent has not filed any appeal. It cannot be said that there is inconsistent decree. When the plaintiff claimed only a lesser amount in the other suit, and a decree was granted for the same, the question whether the car belonged to the respondent or not, was not really necessary for decision in that case. Any pausing observation cannot invalidate a validly obtained decree.

24. Learned counsel for the respondent was also not in a position to substantiate his case that his party has got a special case, or an extraordinary circumstance, so as to obtain stay. Granting of stay under O.21, Rule 29, C.P.C. is like passing an order of injunction, prohibiting the decree-holder from executing the decree. So, naturally, all the grounds for granting an injunction also should be made out apart from the conditions under O.21, Rule 29, C.P.C. According to me, no such ground has been made out for granting stay.

25. Learned counsel further submitted that against the decree in O.S.No.106 of 1987, the decree-holder has filed an appeal before the Court, and that decree must be treated as a suit for the purpose of O.21, Rule 29, C.P.C. According to the learned counsel, till the entire proceedings comes to an end, the continuation of the proceeding must also be treated as a suit, and the word suit will have to be liberally understood. For the said purpose, learned counsel relied on the passage in Mulla (cited supra) at page 1686 wherein the learned Author has said thus:-

"The Punjab Court had held that the Court can in its inherent jurisdiction stay execution proceedings pending the decision of an appeal in the judgment-dobtors suit. But the Calcutta High Court considers that it is not necessary to have recourse to the inherent jurisdiction and construes the words "until the pending suit has been decided: to mean until the claim in the pending suit has been finally decided, i.e., after all rights of appeal have been exhausted"

According to me, the above passage is also not going to help the respondent. The decision relied on by the learned Author is also not going to help him.

26. In a Bench decision of our High Court reported in S.A.Ramanathan Chettiar v. M.P.Kashi Chettiar alias Meyappa Chettiar and others, 1943 (2) M.L.J. 452 the decision of the Calcutta High Court in Mahesh Chandra v. Jogendra Lal, 1928 I.L.R. (55) Cal. 512 came for consideration by this Court, wherein it was held thus:-

"On a strict construction of the words used in the order, the appellant cannot argue that the order of stay continues even after disposal of the suit. That order having been made under O.21, rule 29 of the Code of Civil Procedure the learned advocate for the appellant argues that a wider operation ought to be given to it. The rule states 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 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." The contention is that the words until the pending suit has been decided really mean until not merely this suit is decided but also until the remedies of the appellant are exhausted by appeals preferred against the decision in the suit. Reliance is placed on the decision of the Calcutta High Court in Mahesh Chandra Sadhu v. Jogendra Lal Sarkar, A.I.R. 1929 Cal.222 where the words until the pending suit has been decided, has been interpreted to mean until the pending suit has been finally decided.; the appeal being apparently regarded as a continuation of the suit. According to the learned Judges, the word suit; here includes an appeal or appeals from the decision until a finality is reached. But we find that this decision was considered in a later decision of the same Court in Radhabally Khan v. Pyarilal Ghosh in this case, the learned Judges emphatically dissented from the view taken in the earlier case and expressed that opinion that if it were necessary they would have referred the correctness of the earlier decision to a Full Bench, but they did not consider it necessary to do so as the order then under consideration was not one expressly made under Rule 29. Apart from these two decisions, we have not been referred to any other case directly bearing on the interpretation of the rule under consideration. Mr.Swaminatha Iyer, has, however, referred us to a decision of this court based upon Section 10 of the Civil Procedure Code where the words "pending suit" occur. In Chinnakaruppan Chetti v. Meyyappa Chetti, Seshagiri Ayyar, J., considered that those words meant to include the appellate stages of the suit as an appeal was but a continuation of a suit. We, are, however, not prepared to apply this reasoning to the provisions of O.21, Rule 29 with which we are here concerned. We are not convinced that the reasons adduced by the learned Judges who decided the case in Mahesh Chandra Sadhu v. Jogendralal Sarkar, AIR 1928 Cal. 222 [LQ/CalHC/1927/211] are sufficient to out-weigh the plain meaning of the words used in the rule. We consider that suit in the rule means the suit and not the appeal or appeals therefrom to the appellate Court. The contention of the appellant based on O.21, Rule 29 of the Civil Procedure Code must accordingly be overruled." (Italics supplied)

27. By staying the execution of the decree, the decree-holder, has to be deprived of getting its fruits and realising the same. The car which the respondent was bound to surrender in the year 1989 pursuant to the decree is allowed to continue to be in his possession even to-day. This, according to me, has caused great injustice to the decree-holder. The discretion was not properly exercised by the Court below, nor has it applied the law correctly. The facts were also not appreciated in the proper perspective. I hold that the order of the court below is liable to be set aside since it is illegal.

28. In the result, the civil revision petition is allowed with costs. The respondent herein is directed to surrender possession of the car in question within a period of two weeks from to-day. In case he fails to do so, the petitioner herein can take necessary steps to seize the car.