Mr. Mohammad Yaqoob Mir, C.J. - Regarding property in dispute, two separate suits one by the petitioners herein bearing Title Suit No.10 (T) 2004 was instituted on 07.04.2004 which finally stand decreed and another by the respondent Smti. Vinnetta Kharsyntiew bearing Title Suit No.27 (T) 2004 instituted in the month of July 2004 renumbered as No.188 (T) 2013 before the same Court i.e. in the Court of Assistant to Deputy Commissioner, Shillong, is still pending.

2. Order dated 07.12.2017, passed by the Court of Assistant to Deputy Commissioner, Shillong, allowing the application of respondents (judgment debtors) under Order 21, Rule 29 of Code of Civil Procedure, 1908 staying the execution of decree dated 06.05.2013, till disposal of Title Suit No.188 (T) 2013, is sought to be quashed by invoking power under Article 227 of the Constitution of India. The petition has been registered as CR (P) [Civil Revision], because the petitioner has wrongly styled it as Civil Revision when in fact petition is under Article 227 of the Constitution of India.

3. Learned counsel for the petitioners (decree holders) contended that execution of the decree was not warranted to be stayed. The jurisdiction under Order 21, Rule 29 CPC has to be exercised with great care and caution so that the decree holder is not deprived of reaping the fruits of the decree.

4. The petitioners (decree holders) had instituted the suit in the year 2004, learned Trial Court has dismissed the suit but the Appellate Court while setting aside the judgment of the Trial Court has decreed the suit. The judgment and decree passed by the Appellate Court was up held by the Revisional Court i.e. High Court and then, SLP filed by the respondents was also dismissed on 05.01.2016. Precisely, submission is that, long drawn litigation, spreading over a period of 12 years was concluded with the dismissal of SLP, therefore, there was no scope for staying the execution of the decree. Supporting his contention has placed reliance on the judgments reported in:

(i) AIR 1982 SC 686 [LQ/SC/1981/372]

(ii) 1995 (Supp) 4 SCC 574

(iii) (2003) 11 SCC 766

(iv) AIR 1971 A&N 95

(v) AIR 1971 A&N 157

(vi) 1998 (4) GLT 302

(vii) AIR 2005 Orissa 190

(viii) 1987 (Supp) SCC 345 and

(ix) (2009) 10 SCC 223 [LQ/SC/2009/1848] .

5. Learned counsel for the respondents contended that every case has its own facts and features, law has to be applied accordingly. The judgments relied upon by the learned counsel for the petitioners are on different facts and circumstances. In support of the contention, learned counsel would submit that multiplicity of litigation shall not be advantageous to either party. It is in the peculiar facts and circumstances of the case, the learned Executing Court has rightly exercised the jurisdiction under Order 21, Rule 29 of CPC. In support of her contentions has placed reliance on the judgments reported in:

(i) (1936) 70 MLJ 120 [LQ/MadHC/1935/375]

(ii) (1997) IMLJ 48

(iii) AIR 1973 SC 528 [LQ/SC/1972/401] and

(iv) (2010) 8 SCC 329 [LQ/SC/2010/718 ;] ">(2010) 8 SCC 329 [LQ/SC/2010/718 ;] [LQ/SC/2010/718 ;] .

6. For appreciating the rival contentions of the learned counsel for the parties in right perspective, it shall be advantageous to precisely notice the factual matrix of the case so as to decide as to whether stay of execution of the proceedings was warranted or not.

7. The petitioners (hereinafter referred to as decree holders) instituted, "Title Suit No. 10 (T) 2004 captioned Shri Tushar Nath Bhattacharjee & ors. v. Mrs. Vennetta Kharsyntiew & anr.", in the Court of Assistant to Deputy Commissioner, Shillong on 07.04.2004, for declaration of right, title, interest, recovery of possession and for permanent injunction regarding the plot of land admeasuring 14,285 sq.ft. covered by plot No.80 comprised in Patta No.58 located at Lachumiere, Shilllong along with two Assam Type Houses (one main house and another the out-house) besides other houses and structures existing thereon.

8. The said suit was dismissed by the learned Trial Court (Assistant to Deputy Commissioner, East Khasi Hills District, Shillong) vide detailed judgment and decree dated 10.02.2012. Aggrieved whereof, the decree holders filed Regular First Appeal, which has been allowed by the learned Appellate Court (District Judge, Shillong) vide detailed judgment dated 06.05.2013, in terms whereof, the suit of the decree holders has been decreed and the decree holders have been held entitled to recover possession of the suit property.

9. The judgment debtors (respondents herein) dissatisfied therewith, filed Civil Revision Petition [CRP No.28 of 2013] under Section 36-A of Administration of Justice and Police (in Khasi and Jaintia Hills) Rules, 1937 before this Court titled "Mrs. Venetta Kharsyntiew & anr. v. Shri Tushar Nath Bhattacharjee & ors.", which was dismissed by this Court vide judgment dated 23.06.2014. The judgment debtors then filed review petition registered as Review Petition No.9 of 2014 that too has been dismissed by the Full Bench of this Court vide judgment dated 10.09.2015. The judgment debtors filed Special Leave to Appeal before the Honble Supreme Court which has been dismissed on 05.01.2016. The text of the order of the Honble Supreme Court is advantageous to be quoted:-

"ORDER

Delay condoned.

The special leave petition is dismissed.

However, it is made clear that any observations or expressions made in the impugned judgments will not in any way be used against the petitioners in a suit for specific performance."

10. The execution petition filed by the decree holders was pending. The judgment debtors filed an application under Order 21, Rule 29 of CPC for staying the operation of the decree till disposal of Title Suit No.188 (T) 2013. The application has been allowed vide order impugned dated 07.12.2016.

11. One of the judgment debtors (respondent No.1) had also instituted the suit captioned "Smti. Venetta Kharsyntiew v. Shri Tushar Nath Bhattacharjee & ors." which was registered as Title Suit No. 27 (T) 2004 renumbered as Suit No. 188 (T) 2013 before the same Court in the month of July 2004 i.e. in the Court of Assistant to Deputy Commissioner, Shillong for declaration specific performance, permanent injunction along with other consequential reliefs regarding the same suit property i.e. land admeasuring 14,285 sq.ft. including two Assam Type Houses comprised in Patta No.58 plot No.80 situated at Lachumiere, Shilllong.

12. The judgment debtors (plaintiff in the said Title Suit No.27 (T) 2004 renumbered as Title Suit No.188 (T) 2013), has alleged that the suit property was agreed to be sold against consideration value of Rs. 12 lakhs in favour of the judgment debtors. In support whereof, an agreement to sell dated 04.03.1992 was executed. A sum of Rs. 2 lakhs on 04.03.1992, Rs. 1 lakh on 04.04.1992, Rs. 30,000/- on 13.05.1992 and Rs. 1 lakh on 26.05.1992 in total Rs. 4,30,000/- (Rupees four lakhs and thirty thousand) out of the total consideration amount of Rs. 12 lakhs were paid and possession of the suit property delivered to the judgment debtors (plaintiff in the Title Suit No.27 (T) 2004) renumbered as Title Suit No.188 (T) 2013. Along with the plaint, application for grant of temporary injunction was also filed and ex-parte ad interim injunction was granted on 21.07.2004 by the Trial Court in terms whereof, defendants No.1 to 3 therein (decree holders petitioners herein) were restrained from entering into transaction for sale, transfer of the said property with defendant No.4 therein or any other person or party and were also restrained from interfering with the possession of the judgment debtors (plaintiff therein) furthermore, also directed not to interfere with the development progress, enjoyment and occupation of the said property. The said order was made absolute by the learned Trial Court vide its detailed order dated 13.05.2005 while finally disposing of Misc. Case No. 70 (T) 2004 i.e. interim application for grant of temporary injunction. The order granting ex parte injunction and then, the order dated 13.05.2005 passed by the learned Trial Court making injunction order absolute till disposal of the said suit No.278 (T) 2004 filed by the judgment debtors has not been challenged therefore, it is in operation because Title Suit No.27 (T) 2004 now renumbered as No.188 (T) 2013 has not been finally disposed of. However, it is stated that the trial of the said suit is in full swing.

13. From the factual matrix as referred to above, it is empathically clear that subject matter of both the suits is the same property, when it is so, why both the suits were not tried together by the learned Trial Court, for disposal of this petition at this stage is not required to be looked into by this Court.

14. Now, the question which emerges for consideration is as to whether in the peculiar facts and circumstances resort to Order 21, Rule 29 CPC was appropriate. For facility of reference Order 21, Rule 29 CPC is reproduced hereunder:-

"29.Stay of execution pending suit between decree-holder and judgment-debtor.- 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.]"

15. Plain reading of the rule envisage that suit must be pending against the holder of decree of such Court, on the part of the person against whom decree was passed, then execution of the decree until the pending suit is decided may be stayed on such terms as to security or otherwise as the Court thinks fit.

16. The Title Suit No. 27 (T) 2004 renumbered 188 (T) 2013 titled "Mrs. Venetta Kharsyntiew & anr. v. Shri Tushar Nath Bhattacharjee & ors." regarding the same subject matter as indicated above is pending before the same Court and the same Court (Trial Court) has granted temporary injunction restraining the decree holders (defendants therein) from causing any interference with the suit property or from creating any third party interest. The said restraint order which has been made absolute by the learned Trial Court vide order dated 13.05.2015 has not been challenged. True it is that the same will not operate as a bar to the Executing Court for execution of the decree, but in essence, if execution is allowed by the same Court in favour of the decree holders, the same will indirectly violate its own order dated 13.05.2015, which in turn on deciding the suit of the judgment debtors, finally may give rise to complicacies and also multiplicity of litigation.

17. The Honble Supreme Court while dismissing the SLP on 01.05.2016 against the final judgment and decree has made it clear that any observations or expressions made in the impugned judgments will not in any way be used against the petitioners in a suit for specific performance.

18. In the stated background, exercise of jurisdiction by the Executing Court (Trial Court) under Order 21, Rule 29 of CPC staying the execution of decree till final disposal of Title Suit No.27 (T) 2004 filed by the judgment debtors in the month of July 2004, is in keeping with the spirit of the rules.

19. In the judgment rendered by the Honble Apex Court in the case of "Krishna Singh v. Mathura Ahir & ors." reported in AIR 1982 SC 686 [LQ/SC/1981/372] , the facts and position were all together different. Paragraphs 8 and 17 of the judgment are relevant to be quoted:-

"8. Not content with his acrimonious defeat right up to the highest Court of the land Sri Krishna Singh in order to nullify the decision of the High Court and this Court, filed a civil suit in which he raised almost the same pleas which had taken in defence of the previous suit. The suit was encouraged by the observations made by us that the title of Harshankaranand was left open. Sri Krishna Singh further contended that as Harshankaranand was not a duly installed, Mahant, he had no right to evict him and others - plea which had been clearly negatived by this Court.

17. There is yet a very formidable defect in the order passed by the Civil Judge. Under O.XXI, R.29 jurisdiction is vested only in the Court which had passed the decree to say its execution. In the instant case, the suit which was the subject matter of the appeal was decided by the Munsiff, Varanasi who had passed the decree. Therefore, an application for stay of execution, if any, could have been made before that Court and not before any other Court, including the Civil Judge. We are fortified in our view by a decision of this Court in Shaukat Hussain v. Smti. Bhuneshwari Devi, (1973) 1 SCR 1022 [LQ/SC/1972/401] : (AIR 1973 SC 528 [LQ/SC/1972/401] ) where this Court observed as follows (at p.531 of AIR):

"Rule 29 clearly shows that the power of the Court to stay execution before it flows directly from the fact that the execution is at the instance of the decree-holder whose decree had been passed by that Court only. If the decree in execution was not passed by it, it had no jurisdiction to stay the execution".

(Emphasis supplied)

20. In the reported judgment, the decree holder had filed the suit after the suit of the decree holder was decreed and upheld up to the highest Court. Secondly, the suit was not filed before the same Court but a different Court.

21. In the judgment rendered by the Honble Apex Court in the case of "Parbati Devi Jaiswal (Smt) & ors. v. Kedar Lal Jaiswal & ors.", reported in 1995 Supp (4) SCC 574, the suit was filed in the year 1968 and decreed on 13.04.1973. In the year 1988, another suit was filed for restraining execution of decree passed in the year 1973, same was dismissed. Again a suit was filed by the father of the judgment debtor for restraining execution of decree passed in Civil Suit No.636 of 1968. In the peculiar facts of the said case, it was held that granting temporary injunction to restrain execution of decree shall be miscarriage of justice. It has been held as under,

"We find no valid grounds or justification in restraining and depriving the appellants from reaping the fruits of the decree passed in their favour after long-drawn litigation and it is a case of an abuse of the process of the court in passing the impugned order by the City Civil Court on 02.02.1990 and affirmed by the High Court by the order dated 22.03.1991. Finally, both the orders have been set aside."

22. So on facts and grounds, the case of the petitioners herein is on a different footing as discussed hereinabove, there are valid grounds justifying stay of execution.

23. The judgment rendered in the case of "Naralasetti Thammarao & ors. v. Duvva Veerraju & ors.", reported in (2003) 11 SCC 766, it has been noticed that subject matter of both the suits was same, but the decrees passed were separate, based on different cause of actions and reliefs. The requirement of Order 21, Rule 29 of CPC is that a suit must be pending on the part of the person against whom the decree was passed. In the reported judgment, both the two suits were disposed of and decreed, the applicability of Order 21, Rule 29 of CPC was not an issue, therefore, reported judgment is of no help to the petitioners. It has been held that lawfully obtained decree does not fall within the ambit of "other injury of any kind" as occur in Order 39, Rule 2 of CPC.

24. It appears that the learned counsel for the petitioners tried to say that the order of injunction passed by the learned Trial Court could not have been passed but the petitioners have not challenged the same therefore, such a submission is only to be ignored. Similar is the position in the judgments relied upon by the petitioners reported in AIR 1971 Assam and Nagaland 95 (V.58 C 28) and judgment reported in AIR 1971 Assam and Nagaland 157 (V.58 C 53).

25. Learned counsel for the petitioners while relying on the judgment rendered by the Gauhati High Court (Imphal Bench) reported in 1998 (4) GLT 302 titled "Nirmal CH. Roy v. Commandant, Manipur Rifles & ors." would submit that the Trial Court should have expeditiously executed the decree and should have ignored the technicalities. In the reported judgment, applicability or otherwise of Order 21, Rule 29 CPC was not an issue, objections under section 47 of CPC were taken and in that context, it was impressed upon, that the Court should endeavour to execute the decree expeditiously and shall not take technical or tangential approach so as to enable the decree holder to get the fruits of the decree. The factual position in the reported judgment is different to the issue under consideration in this case.

26. Next learned counsel for the petitioners while relying on the judgment rendered in "Youth Club, Bolangir v. Premalata Kumari Devi & ors.", reported in AIR 2005 Orissa 190, would submit that the application for stay of execution of decree on the ground of pendency of the suit between the parties was rejected by the Execution Court same was upheld by the High Court of Orissa, therefore, same principles may be applied to the present case. The submission on scrutiny is found to be without substance because in the reported judgment, decree had attained finality as was not assailed for about a decade. After execution petition was filed, it is only thereafter the opposite party has filed another suit in the year 2002 for setting aside the decree passed in Title Suit No.19 of 1980. It is in that background the application under Order 21, Rule 29 of CPC was rejected. In the reported judgment, it has been held that unless there are extraordinary circumstances, reaping the fruits of the decree except for good reasons cannot be denied. Applying the said principle to the present case, the facts and circumstances as precisely noticed above, will clearly suggest that there are extraordinary circumstances which warranted exercise of jurisdiction under Order 21, Rule 29 of CPC. So on fact, the judgment is of no help to the petitioners.

27. Learned counsel for the petitioners also contended that the suit which is pending on the part of the judgment debtors is for grant of specific performance. Grant whereof is discretionary. Supporting this contention has placed reliance on the judgments reported in 1987 (Supp) SCC 340 and (2009) 10 SCC 223 [LQ/SC/2009/1848] . Such grounds are open to be projected in the suit which is pending. To express any opinion on the facts situation of the said case may cause prejudice to either side. Suffice it to say that such a situation would not constitute a ground for declining exercise of jurisdiction under Order 21, Rule 29 CPC that too in the peculiar circumstances and the order of the Honble Supreme Court passed in SLP as referred to above.

28. Learned counsel for the respondents has rightly relied upon on the judgment passed by the Madras High Court in the case of "Diamond Sea Foods Export v. A.M. Nicholas", reported in 1997 (1) MLJ 48. [LQ/MadHC/1996/715] Para 22 of the judgment is relevant to be quoted:-

"22. The Supreme Court in Shaukat Hussain v. Bhuvaneshwari Devi, has already prescribed the conditions which have to be complied with when an Order is passed under Order 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 29.07.1989 and the execution petition was filed on 15.04.1991. 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 simultaneously proceeding pending in any Court. According to me, that by itself is sufficient to discard the application under Order 21, Rule 29, C.P.C."

29. Applying the principle to the facts of the present case, both the conditions envisaged by Order 21, Rule 29 CPC are satisfied, justifying the grant of stay.

30. It is also contended by the learned counsel for the respondents that power exercisable under Article 227 of the Constitution of India is very limited cannot be exercised at the drop of a hat. The High Courts power in exercise of its jurisdiction of superintendence is to interfere only when it is required to keep the Tribunals and Courts sub-ordinate to it within the bounds of their authority. The power has to be exercised in an appropriate case with an object of keeping strict administrative and judicial control on the administration of justice. The power, under Article 227 of the Constitution of India is not fettered but judicial discipline demands its exercise with great deal of care and caution.

31. While viewing the case on the touchstone of the principles to be followed, in the background of the peculiar facts and circumstances of the case, the position of long drawn litigation between the parties and position of the two suits filed in the month of April 2004 and another filed in the month of July 2004 regarding the same subject matter, stay of execution of decree, passed in the first instituted suit of the decree holders was warranted, though decree has attained finality but its execution has to wait till final decision in the second suit filed by the judgment debtor in the year 2004 itself, therefore, the Executing Court has rightly exercised the jurisdiction under Order 21, Rule 29 of CPC.

32. No doubt it is a matter of concern that the decree holder after long drawn legal battle is yet to reap the fruits of the decree. Delay in reaping the fruits of the decree is much to the annoyance of the decree holder which normally cannot be allowed to persist, but keeping in view of the peculiar features and facts, the decision in the suit filed by the judgment debtors simultaneously in the year 2004 itself shall have direct impact on the execution of decree. In order to avoid multiplicity of litigations, the decree holders have to wait for reaping the fruits of the decree.

33. Title Suit No.27 (T) 2004 renumbered 188 (T) 2013 is pending for last 14 years before the learned Trial Court. The learned Trial Court is directed to decide the said pending suit with promptitude by scheduling its proceeding/hearing on day to day basis or weekly basis as shall be deemed apposite. Both the parties shall co-operate so as to enable the learned Trial Court to dispose of the suit. The learned Trial Court shall submit the status report regarding progress of the trial of the said suit on the 1st of each month.

34. The Registry to maintain index and to place along with the status report as shall be submitted by the learned Trial Court for consideration on the administrative side on the 10th of each month.

35. In the final analysis, the order impugned passed by the Executing Court does not call for interference. Petition accordingly dismissed.