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Stay Of Execution Of Decree Pending Suit To Be Granted Only In Exceptional And Extraordinary Cases

In Sayed Nair Hasan vs Santi Singh, the writ petition was filed before the HIGH COURT OF CHHATTISGARH, by the petitioner/judgment-debtor directed against the order passed by the trial Court rejecting the petitioner's/judgment debtor's application under Order 21 Rule 29 read with Section 151 of the Code of Civil Procedure on the ground that the said order was unsustainable and bad in law as present is a fit case where the trial Court ought to have exercised discretion vested in it under Order 21 Rule 29 of the CPC.

The High court said that the jurisdiction to stay execution of decree under Order 21 Rule 29 of the CPC has to be exercised with great care and only in exceptional and extra-ordinary cases as the power to grant stay is discretionary. Though the power to grant stay is discretionary, yet it should be exercised on certain legal principle.

Referring to the judgment in Judhistir Jena v. Surendra Mohanty, the Court said that the fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of the 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 very precarious nature. The allegations therein ordinarily would be that 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 and thus 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 the frivolous character are instituted and litigants are out after further series of litigations. The decree must be allowed to be executed, and unless an extra-ordinary 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. No hard and fast rule can be laid down in what cases stay would be granted or refused. But as has already been stated, a rigorous test is to be applied. 

Rejecting the application for stay, the High Court decided that a close perusal of the above-stated averment in the application would show that merely on the ground of pendency of civil suit stating the decree passed earlier is not executable, Order 21 Rule 29 of the CPC is sought to be invoked. There is no averment in the application that decree earlier granted was passed on the basis of fraud played or on the basis of mis-representation or any other strong or exceptional ground is pleaded to stay the operation of decree granted earlier. No such extra-ordinary case is made out to grant stay of execution of decree.

Article referred: https://www.livelaw.in/stay-of-execution-of-decree-pending-suit-between-decree-holder-and-judgment-debtor-shall-be-granted-only-in-exceptional-and-extraordinary-cases-chhattisgarh-hc-read-order/

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