Execution Proceedings Cannot Be Stayed If Challenge To Decree & Execution Not Before Same Court: Karnataka High Court

The Karnataka High Court has said that a court can exercise powers under Order 21 Rule 29 of the Code of Civil Procedure and pass order of staying the execution proceedings only if the suit challenging the decree and execution proceedings referred are pending before the same court and not before two different courts which are not of coordinate jurisdiction. Further the court cautioned the trial court by saying “Use of the power and jurisdiction to stay its own proceeding pending before itself by the executing Court has to be exercised only under extraordinary and exceptional circumstances and not as a matter of course and care/caution has to be taken by the executing Court to find out if staying its own proceedings would result in abuse of process of law.” The observations were made while allowing a petition filed by Sikandar Mohammed Ali Dalal and another and quashing order passed by the Civil Judge, Haliyal dated 01.12.2016, in execution proceedings whereby the application filed by respondent-judgment debtor, seeking stay of further proceedings in the execution petition till disposal of suit pending on the file of the Sr. Civil Judge, Yallapur sitting at Haliyal, was allowed. Referring to Order 21 Rule 29 CPC the court said “If the execution proceedings are pending in one Court and the suit between the decree holder and judgment debtor is pending before another Court, which is not of coordinate jurisdiction, the provisions contained in Order 21 Rule 29 CPC would not be applicable and the same cannot be invoked for the purpose of seeking stay of the execution proceedings.” Then it held “In the instant case, it is an undisputed fact that execution proceedings are pending before the Civil Judge, Haliyal whereas the suit filed by the respondent-judgment debtor in O.S. The court observed “Sec 151 CPC is also not available to the respondent-judgment debtor to seek stay of further proceedings in execution proceedings, pending disposal of suit.” Following which it said “The power of the executing Court to stay its own proceedings can be invoked only in cases where a suit has already been instituted by the judgment debtor prior to institution of the execution proceedings and the same will not apply to suits which are instituted subsequent to institution of the execution proceedings.” It opined “Any another interpretation or construction placed on Order 21 Rule 29 CPC will lead to disastrous consequence since every judgment debtor would be in a position to scuttle, stall and obstruct the execution proceedings by filing a suit after institution of the execution proceedings seeking to enforce the decrees which have attained finality and become conclusive and binding upon judgment debtor.” Finally, observing that Order 21 Rule 29 CPC is discretionary and should be exercised judiciously and not mechanically as a matter of course.