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HIGH COURT OF DELHI
Date of Decision: 18.12.2025
NARESH KUMAR JAIN & ORS. .....Petitioners
Through: Mr. Rajesh Aggarwal and Ms. Deeksha Aggarwal, Advocates
Through: Mr. Aman Gupta, Mr. Divyam Kandhari and Mr. Anup Kashyap, Advocates
JUDGMENT
1. Petitioners have assailed order dated 03.12.2025 of the learned execution court, whereby their application under Order XXI Rule 29 CPC was dismissed and consequently warrants of possession of the subject property were directed.
2. Learned counsel for respondent/Decree Holder appearing on advance intimation accepts notice.
3. Learned counsel for both sides request that in view of the urgency that has arisen in view of the impugned order, final arguments may be heard at this stage itself. Accordingly, I have heard learned counsel for both sides.
4. Broadly speaking, the present petitioners claim that they are in possession of the property, which is subject matter of the decree of possession under execution. The present petitioners claim that they were not made party to the suit which culminated into the judgment and the decree. It is further contended by them that the judgment and decree under execution were obtained by the parties to that suit in collusion, therefore, the present petitioners filed a suit for declaration of ownership, which suit is pending before the court of District Judge, West, Delhi. That being so, the petitioners claim that the execution proceedings should be adjourned sine die till the suit filed by them is decided.
5. The said application of the present petitioners was dismissed by the learned execution court, holding thus: “The applicants are claiming their right, title and interest in the suit property from the successor in interest of the JD. It is admitted fact that the applicants have acquired the interest in the suit property from the transferee pendente lite. The Hon'ble High Court of Delhi in its order dated 28.01.2025 has clearly noted that the applicants (earlier objectors) in the present execution petition are precluded from raising any objection under Rule 102 of Order XXI CPC. It was ruled that the objections filed by the transferee pendente lite are expressly barred under Rule 102 of Order XXI CPC and they have no locus to object to proceedings of the execution of decree in question. Since the applicants being objectors have no locus as held by the Hon'ble High Court of Delhi as stated above, hence, the application of the applicants is not maintainable before this court. Present court being the executing court cannot go beyond the decree. The applicants are at liberty to seek the prayer of stay of the present execution petition before the court in which the applicants have challenged the judgment and decree of possession dated 20.10.1998.”
6. Learned counsel for petitioners after taking me through the aforesaid, contends that the impugned order is not sustainable in the eyes of law since if the warrants of possession are executed, the petitioners would be rendered remediless. Learned counsel for petitioners alleges that the judgment and decree under execution were obtained by playing fraud.
7. However, in response to a specific query, learned counsel for petitioners does not dispute that as per their claim, interest in the subject property was acquired by them from the transferee pendente lite and they are successors in interest of the Judgment Debtor. It is also admitted that the declaratory suit filed by the present petitioners was so filed subsequent to the initiation of the execution proceedings, in which the impugned order has been passed.
8. Learned counsel for respondent/Decree Holder, while strongly opposing the present petition, contends that any declaratory suit filed subsequent to the commencement of the execution proceedings cannot be a ground to stay the execution proceedings, because that would lead to an absurdity where every Judgment Debtor would personally or through someone file such declaratory suits to thwart execution. In this regard, learned counsel for respondent/Decree Holder places reliance on the judgment of Allahabad High Court in the case titled Deepak & Anr vs District Judge, Hardoi & Ors, 2023 SCC OnLine All 1481.
9. In the case of Deepak & Anr (supra), the learned Single Judge traversed through the view taken in similar situations by different High Courts including Madras High Court and Karnataka High Court as well as by the Hon’ble Supreme Court, all of whom are of consistent view that where the declaratory or other suit, benefit whereof is claimed by a Judgment Debtor, is filed subsequent to the initiation of execution proceedings, the latter cannot be stayed. The learned Single Judge in the said case observed thus:
some other court. But ordinarily courts, unless they exercise appellate or revisional jurisdiction, do not have the power to stop proceedings in other courts by an order directed to such courts. For this specific provisions of law are necessary. Rule 29 clearly shows that the power of the court to stay execution before it flows directly from the fact that the execution is at the instance of the decree-holder whose decree had been passed by that court only. If the decree in execution was not passed by it, it had no jurisdiction to stay the execution. In fact this is emphasised by rule 26 already referred to. In the case before us the decree sought to be executed was not the decree of Munsif 1st Court Gaya but the decree of the Subordinate Judge, Gaya passed by him in exercise of his Small Cause Court jurisdiction. It is, therefore, obvious that the Order staying execution passed by the Munsif, Gaya would be incompetent and without jurisdiction.”......
19. The aspect of the word ‘where the Suit is pending’ is also of particular importance since the same connotes that a Suit filed against holder of a decree of such Court should be pending as on the date when decree is sought to be executed which has also been considered by High Court of Madras in the case of Balamnal (supra) in the following manner:—
said that simultaneous proceedings are pending so as to invoke Order XXI Rule 29 CPC.
23. Even assuming that simultaneous proceedings are pending and even all the conditions of Order XXI Rule 29 CPC get satisfied, still staying the execution of the decree is not automatic, as the Execution Court has to exercise its discretion whether by staying the decree, great injustice would be caused to the decree holder or not.”
20. In the aforesaid case also it is evident that execution proceedings were filed prior to institution of Regular Suit against the decree holder and in such circumstances, High Court at Madras has held that the same would not come within the definition of ‘simultaneous proceedings’ so as to invoke provisions of Order XXI Rule 29 of the Code.........
24. Although the provisions of Order XXI Rule 29 of the Code empower the Executing Court to stay the execution of decree, at the same time, it is evident that such a power is not to be exercised in a cursory or mechanical manner but in exceptional circumstances only when a Suit against the decree holder is pending consideration at the time of filing of execution. Applying the aforesaid provisions to Suits filed subsequent to execution proceedings would lead to absurd results whereby no decree of any Court of competent jurisdiction can ever be satisfied. This cannot be the meaning and purpose of Order XXI Rule 29 of the Code particularly keeping in view the specific provisions of Rule 29 of the Code itself which indicates that a Suit should be pending against the holder of a decree or of a decree which has been executed. The obvious conclusion of the word ‘pending’ is that the Suit against the judgment decree holder should be pending as on the date of institution of execution. This Court is in respectful agreement with the judgments rendered by the High Courts of Madras and Karnataka.” (emphasis supplied)
10. I am in respectful agreement with the view taken by the learned Single Judge of the Allahabad High Court in the above cited judicial pronouncement.
11. In view of the above discussion, I find no infirmity in the impugned order, so the same is upheld and the present petition as well as the accompanying applications are dismissed with cost of Rs.15,000/- to be paid by the petitioners to the respondent/Decree Holder.
12. At this stage, learned counsel for petitioners submits that he has no time to challenge this order, so it may be clarified that the learned court dealing with the declaratory suit shall take a view independent of the above discussion. The same is accordingly clarified.
GIRISH KATHPALIA (JUDGE) DECEMBER 18, 2025