Orissa High Court: The Bench of A.K. Rath, J. dismissed the petition filed against the order which rejected the application of the petitioner filed under Order 21 Rule 29 CPC to stay the further proceeding in an execution case till the disposal of another civil suit.
The facts of the case were that the plaintiffs had instituted a civil suit before the Civil Judge for declaration of right, title and interest over the suit property. Petitioner was defendant No. 1 in the suit. The suit was decreed ex parte against defendant No. 1 to 7 and 9 to 12. Thereafter, they levied an Execution Case. In the meanwhile, petitioner, as plaintiff instituted another civil suit in the same court for a declaration of title, a declaration that judgment and decree passed, was null and void, confirmation of possession and permanent injunction. He filed an application under Order 21 Rule 29 CPC to stay Execution Case of 2006 till the disposal of the suit. The executing Court dismissed the same. Mr Subrat Panda, counsel for the petitioner submitted that the Decree Holder by playing fraud on the Court obtained the decree. Thus the decree was not executable.
The Court held that merely because another suit was filed, the same was not per se a ground to stay the execution case. The Decree Holder should not be deprived of the fruits of litigation. Order 6 Rule 4 CPC provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary, such particulars shall be stated in the pleading. The petition under Order 21 Rule 29 CPC cannot come to the rescue of the petitioner unless sufficient cause is shown to stay the execution case. [Dhoba Moharana v. Lili Moharana, 2019 SCC OnLine Ori 164, Ordered on 10-04-2019]
