“Stay of Execution Pending Suit Between the Decree-Holder and the Judgment-Debtor”
Provision (Plain Meaning)
Order 21 Rule 29 CPC states:
If a suit is pending in any Court against the decree-holder at the instance of the judgment-debtor, the Court may, on such terms as it thinks fit, stay the execution of the decree until the pending suit has been decided.
Key Ingredients
- Execution must be pending → The decree-holder is trying to execute the decree.
- A separate suit must already be pending → Filed by the judgment-debtor against the decree-holder.
- Same Court requirement → The Court where execution is filed must be the same Court where the suit is pending.
- Discretionary power → Court may stay execution, not compulsory.
- Terms & conditions → Court may impose terms (like security, undertaking, costs).
Effect
- Protects the judgment-debtor if he has filed a genuine suit against the decree-holder.
- Prevents inconsistent results (e.g., if decree is executed but later set aside in a connected suit).
- But cannot be misused to delay execution – courts use it sparingly.
Example
- A obtains a money decree against B.
- B files a separate suit against A claiming that the decree was obtained by fraud.
- Execution proceedings are filed by A in the same Court.
Under O.21 R.29, the Court has discretion to stay execution of A’s decree until B’s suit is decided.
But:
- If B files the suit in another court, O.21 R.29 will not apply.
- If no separate suit is pending, only objections under Section 47 CPC or O.21 Rules 97–101 are maintainable.
Important Case Law
- Satyawati v. Rajinder Singh (2013) 9 SCC 491
- SC held: Execution is a right of decree-holder. It should not be stayed casually. O.21 R.29 must be applied cautiously.
- Sahodrabai v. Ramchandra Rao (AIR 1968 SC 1058)
- Suit and execution must be in the same Court. If in different courts, O.21 R.29 does not apply.
- Bhagwan Das v. Goswami Brijesh Kumarji (AIR 1976 SC 116)
- Mere filing of a suit by judgment-debtor is not enough. Court must see prima facie merit before granting stay.
- Gurunath R. Bandekar v. Vithal R. Naik (2002) 1 Bom CR 342
- Court may impose conditions such as furnishing security while granting stay under O.21 R.29.
Summary
- O.21 R.29 CPC → Stay of execution possible only if:
- Suit pending between decree-holder & judgment-debtor,
- Same Court,
- Court satisfied that stay is necessary.
- It is discretionary, not a right.
- Cannot be used for delay tactics.
- Security conditions may be imposed.
Short Example + Citation
- A money decree is passed in favour of X (decree-holder) against Y (judgment-debtor).
- Y files a suit in the same court alleging fraud in obtaining decree.
- Execution filed by X.
- Court may stay execution under O.21 R.29 CPC (See Sahodrabai v. Ramchandra Rao, AIR 1968 SC 1058).
Comparison: Order 21 Rule 26 vs Order 21 Rule 29 CPC
| Point of Difference | Order 21 Rule 26 CPC | Order 21 Rule 29 CPC |
|---|---|---|
| Heading | Stay of Execution by the Court to which decree is sent for execution | Stay of Execution pending suit between Decree-Holder & Judgment-Debtor |
| Who applies? | Judgment-debtor | Judgment-debtor |
| Court involved | The transferee court (where decree is sent for execution, not the original court) | The same court where both the decree and the separate suit are pending |
| Grounds | Judgment-debtor shows sufficient cause (e.g., hardship, time to pay, appeal pending, etc.) | A separate suit filed by judgment-debtor against decree-holder is already pending in same court |
| Discretion | Court may stay execution temporarily (usually to give time or until appeal is decided) | Court may stay execution till the suit is disposed of, if justice requires |
| Security | Court can insist on security or conditions (mandatory before granting stay beyond 30 days) | Court can impose terms/conditions (like furnishing security) |
| Object | To give judgment-debtor temporary relief in execution | To avoid conflicting decisions where a connected suit is pending |
| Nature | General, broader application | Very specific and rare situation |
| Example | A money decree sent to another District Court for execution → JD applies for stay on ground of appeal pending in HC. | JD files a suit against DH alleging fraud in obtaining decree, in the same court where decree is pending → Execution may be stayed. |
Case Laws
- Order 21 Rule 26 → Mahadeo Prasad v. Smt. Rukmani Devi (AIR 1982 SC 872) – Stay may be granted with security when appeal is pending.
- Order 21 Rule 29 → Sahodrabai v. Ramchandra Rao (AIR 1968 SC 1058) – Stay applies only if decree and suit are in the same court.
Quick Tip:
- R.26 = Transferee Court → stay for sufficient cause
- R.29 = Same Court → stay if connected suit pending
Order 21 Rule 26 & Rule 29 CPC – Stay of Execution
Order 21 Rule 26 – Stay by Transferee Court
- Provision: When a decree is sent for execution to another court, the transferee court may stay execution.
- Grounds:
- Sufficient cause shown by Judgment-Debtor (JD).
- Appeal pending against the decree.
- Hardship / need of time for payment.
- Conditions:
- Security may be required.
- Stay beyond 30 days only with security (mandatory).
- Object: To protect JD from irreparable loss during pendency of appeal or interim period.
Example: A money decree passed in Delhi is sent to Jaipur for execution. JD shows appeal pending in HC. Jaipur Court may stay execution on security.
Case Law: Mahadeo Prasad v. Smt. Rukmani Devi (AIR 1982 SC 872) – Court has discretion but must impose reasonable terms.
Order 21 Rule 29 – Stay when Suit between DH & JD is Pending
- Provision: When JD files a separate suit against DH in the same court where decree is under execution, the court may stay execution.
- Conditions:
- Both the decree and the suit must be in the same court.
- Court must be satisfied that stay is necessary to prevent conflicting decisions.
- Object: To avoid injustice where the decree itself is challenged in a connected suit.
Example: JD alleges decree obtained by fraud → files a suit for declaration in the same court. Court may stay execution under Rule 29.
Case Law: Sahodrabai v. Ramchandra Rao (AIR 1968 SC 1058) – Rule 29 applies only if decree and suit are in the same court.
Quick Comparison
- R.26 – Transferee Court | Sufficient cause | Temporary stay.
- R.29 – Same Court | Pending suit between JD & DH | Stay till suit decided.
Advocate Tip: Always argue that stay under O.21 R.26 is discretionary and conditional (security needed). For R.29, stress that it’s a narrow exception—only if both proceedings are before the same court.
Draft Application Order 21 Rule 29 CPC
IN THE COURT OF [_________]
Execution Case No. ___ of 20__
In
Original Suit No. ___ of 20__
[Decree Holder] ………………….. Decree Holder
Versus
[Judgment Debtor] ……………… Judgment Debtor/Applicant
Application under Order 21 Rule 29 CPC
for stay of execution of decree
The Applicant most respectfully submits:
- That the above-titled decree has been passed in favour of the Decree Holder and against the Applicant/Judgment Debtor.
- That the Decree Holder has filed the present execution proceedings, which are pending before this Hon’ble Court.
- That the Applicant has filed a separate civil suit being Suit No. ___ of 20__, pending before this Hon’ble Court, against the Decree Holder, challenging the validity/execution of the said decree on grounds of (fraud/misrepresentation/lack of consideration/any other ground as applicable).
- That since both the decree sought to be executed and the said suit are pending before this very Court, the provisions of Order 21 Rule 29 CPC are attracted.
- That unless the execution proceedings are stayed, the Applicant shall suffer irreparable loss and injury, and the suit filed by the Applicant will be rendered infructuous.
- That the balance of convenience lies in favour of the Applicant, and no prejudice shall be caused to the Decree Holder if the execution proceedings are stayed till the disposal of the said suit.
PRAYER
In view of the above, it is most humbly prayed that this Hon’ble Court may be pleased to:
a) Stay the execution proceedings in Execution Case No. ___ of 20__, till the disposal of Suit No. ___ of 20__, pending between the same parties before this Hon’ble Court;
b) Pass such other or further orders as this Hon’ble Court may deem fit and proper in the interest of justice.
Place: ___________
Date: ___________
(Signature of Judgment Debtor/Applicant)
Through Counsel
[Advocate’s Name]
Citation to rely upon while arguing:
- Sahodrabai v. Ramchandra Rao, AIR 1968 SC 1058 – Rule 29 CPC applies only when both decree and suit are pending in the same court.
Draft Application Order 21 Rule 26
IN THE COURT OF [_________]
Execution Case No. ___ of 20__
In
Original Suit No. ___ of 20__
[Decree Holder] ………………….. Decree Holder
Versus
[Judgment Debtor] ……………… Judgment Debtor/Applicant
Application under Order 21 Rule 26 CPC
for stay of execution of decree by transferee court
The Applicant most respectfully submits:
- That the above execution case has been transferred to this Hon’ble Court for execution of decree passed by the Court of [name of original court] in Suit No. ___ of 20__.
- That the Applicant/Judgment Debtor has filed an application/appeal before the competent court against the said decree, which is still pending disposal.
- That the Applicant is making all efforts to obtain a stay order from the appellate court, and for the present, seeks interim protection from this Hon’ble Court under Order 21 Rule 26 CPC.
- That unless the execution proceedings are stayed for a reasonable period, the Applicant shall suffer irreparable loss and injury, and the pending appeal will be rendered infructuous.
- That the Applicant is willing to furnish adequate security/surety to safeguard the interest of the Decree Holder during the pendency of stay.
PRAYER
In the facts and circumstances mentioned above, it is most humbly prayed that this Hon’ble Court may be pleased to:
a) Stay the execution proceedings in Execution Case No. ___ of 20__ for such time as this Hon’ble Court deems fit, to enable the Applicant to obtain stay orders from the appellate court;
b) Direct the Applicant to furnish such security as may be deemed just and proper;
c) Pass any other order which this Hon’ble Court deems fit and proper in the interest of justice.
Place: ___________
Date: ___________
(Signature of Judgment Debtor/Applicant)
Through Counsel
[Advocate’s Name]
Citation to support:
- Mahesh Prasad v. Mt. Mundar, AIR 1951 All 141 – Transferee court has power to grant stay under O.21 R.26, but generally requires security.
Comparison of Order 21 Rule 26 & Rule 29 CPC
| Point | Order 21 Rule 26 CPC | Order 21 Rule 29 CPC |
| Who can grant stay? | Transferee Court (court to which decree has been sent for execution). | Same Court which passed the decree and where a suit by JD against DH is pending. |
| Condition | Stay may be granted to enable the JD to approach appellate court. | Stay can be granted only if a separate suit is pending between same parties in the same court relating to the decree. |
| Nature of power | Discretionary, temporary stay, usually conditional upon furnishing security by JD. | Discretionary, but more restrictive – suit must be bona fide and pending in the same court. |
| Security Requirement | Normally mandatory; JD has to give security for due performance of decree. | No express requirement in law, but court may impose conditions. |
| Objective | To prevent hardship to JD until higher court can be approached for stay. | To avoid conflicting decisions when a decree is under challenge in a suit in the same court. |
| Duration of Stay | For a limited reasonable time (till JD obtains orders from appellate/revisional court). | Till disposal of the suit pending between the parties in the same court. |
| Example | A decree passed by Court at Delhi is transferred to Lucknow for execution. JD files appeal in Delhi HC. Lucknow court may grant temporary stay under O.21 R.26 till HC decides. | A court at Jaipur passes a money decree in favour of B against A. A files a separate suit in the same Jaipur court challenging decree on fraud. Execution can be stayed under O.21 R.29. |
| Case Law | Mahesh Prasad v. Mt. Mundar, AIR 1951 All 141 – Security normally required. | Sahodrabai v. Ramchandra Rao, AIR 1968 SC 1058 – Suit and execution must be in same court. |
Key Takeaway for Arguments:
- R.26 = Transferee Court → Temporary stay, with security.
- R.29 = Same Court → Stay if another suit between parties is pending regarding decree.
Add a Comment