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Civil Revision No. 101 of 1963, decided on 2nd December 1963.
O. XXI, r. 29‑A [as adopted by the Court of Judicial Commissioner N. W. F. P.]‑Interpreta tion of rule‑Stay of execution‑Discretion of Court in seisin of suit under r. 63, O. XXI, C. P. C.‑Executing Court has no option but to stay execution on receiving intimation to that effect.
Sh. Abdul Majid for Petitioner.
S. Usman Ali Shah for Respondent No. 1.
Respondent No. 2 in person.
Date of hearing: 2nd December 1963.
The decision of this revision petition turns on the true interpretation of rule 29‑A of Order XXI [Civil Procedure Code (V of 1908)] as adopted by the Court of the Judicial Commissioner N. W. F. Province. It was conceded by the learned counsel for Sher Badshah decree‑holder respondent that Order XXI, rule 29‑A still holds the field. He, however, tried to suggest that since Civil Judge 1st Class had sent a mere letter of request to the executing Court, namely, Senior Civil Judge was not under any obligation to comply with the request. The argument in my view is clearly gratuitous for the short and good reason that from the perusal of the record it is evident that though in the order -sheet dated 29th January 1963, the Civil Judge had stated that letter of request be sent to the Senior Civil Judge, but in the intimation sent to the Senior Civil Judge he was in most unequivo cal terms required to stay the execution proceedings.
2. It will be convenient here to read rule 29‑A, which is in the following terms:‑
"29‑A. When a suit under R. 63 of this Order is pending the Court in which such suit is filed, may, if it considers that execution of the former decree should be stayed, intimate the fact to the executing Court, which shall thereupon stay execution until the suit is decided."
3. It will be manifest from the language of the Rule that it is for the Court in which the suit under rule 63 is pending to decide whether "it considers that execution of the former decree should be stayed", and as soon as it takes a decision that it should be stayed no intimates the fact to the executing Court, A the latter Court is left with no option but to "stay the execution" until the suit is decided. To put it differently it is for the Court which is sized of the suit under rule 63 of Order XXI to decide whether the execution of the decree should be stayed or not and once it decides in favour of stay and intimates this fact to the executing Court, it becomes incumbent on the latter to comply with such order.
4. This being the legal position, the learned executing Court clearly acted in excess of jurisdiction in not staying the execution proceedings. I accordingly accept the revision petition, set aside the order of the executing Court and direct that the execution proceedings should be stayed till the decision of the suit under Order XXI, rule 63, but make no orders as to costs.
K. B. A. Petition accepted.
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