Skip to main content

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/

Comments

Post a Comment

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...
7 comments
Read more

Vanishing promoters and languishing shareholders

Over Rs 60,000 crore of shareholders’ wealth is stuck in 1,450 companies suspended by the stock exchanges. More importantly, near 100 per cent pledging of promoter holding appears to be common in many of these companies. This, almost rules out any chance of the companies bouncing back. The suspension is for non-compliance of the listing norms. Vanishing Companies - Definition As per the definition stipulated by SEBI, any listed company, which raised moneythrough initial public offer and, thereafter, stopped operations, did not file returnseither with the RoC or SEBI and did not exist on the registered premises wastermed as vanishing.There are provisions under Companies Act under which companies are termedvanishing companies on satisfying certain conditions. it is provided a companywould be deemed to be a vanishing company, if it satisfies all the conditions given below : a) Failed to file returns with Registrar of Companies (ROC) for a period of two years; b) Failed to fil...
3 comments
Read more

Property can be sold on power of attorney - Delhi High Court

As reported in the Hindusthan Times on 5th May:-  http://www.hindustantimes.com/India-news/NewDelhi/Property-can-be-sold-on-power-of-attorney/Article1-1054964.aspx In a judgment that will benefit lakhs of Delhi residents living in co-operative housing societies and DDA flats, the Delhi High Court has quashed a Delhi government circular banning property sale in the Capital through general power of attorney (GPA). The court found that the directions in the circular, issued by the revenue department on April 27 last year, were contrary to the Supreme Court judgment dated October 11, 2011. The HC order will increase the number of saleable properties in Delhi and could bring down the value of freehold properties. According to realty watchers, on an average, around 20% of properties are registered through GPA transfers — a common way of selling leasehold properties and those that don’t have a clear title. The judgment came on a petition filed by a company, Pace Developers and ...
5 comments
Read more