$~60 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 18.12.2025 + CM(M) 2442/2025, CM APPL. 79865/2025 & 79864/2025 NARESH KUMAR JAIN & ORS. .....Petitioners Through: Mr. Rajesh Aggarwal and Ms. Deeksha Aggarwal, Advocates versus RISHAB SHARMA .....Respondent Through: Mr. Aman Gupta, Mr. Divyam Kandhari and Mr. Anup Kashyap, Advocates CORAM: JUSTICE GIRISH KATHPALIA O R D E R (ORAL) 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: “12. A perusal of Order XXI Rule 29 of the Code makes it evident that the same would be applicable in case a Suit is pending in any Court against the holder of a decree of such Court or of a decree which is being executed by such Court on the part of a person against whom the decree is passed or any person whose interest is affected by the decree or any order made in execution thereof (as per Allahabad amendment). 13. The aforesaid aspects of ‘such Court’ has been defined by Hon'ble the Supreme Court in the case of Shaukat Hussain @ Ali Akram v. Smt. Bhuneshwari Devi (Dead) by LRs., (1972) 2 SCC 731 in the following manner: “It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the, instance of the judgment-debtor against the decree-holder. That is a condition under which the court in which the suit is pending may stay the execution before it. If that was the only condition, Mr. Chagla would be right in his contention, because admittedly there was a proceeding in execution by the decree-holder against the judgment-debtor in the court of Munsif 1st Gaya and there was also a suit at the instance of the judgment-debtor against the decreeholder in that court. But there is a snag in that rule. It is not enough that there is a suit pending by the judgment-debtor, it is further necessary that the suit must be against the holder of a decree of such court. The words “such court” are important. “Such court” means in the context of that rule the court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that court. That appears to be the plain meaning of the rule. It is true that in appropriate cases a court may grant an injunction against a party not to prosecute a proceeding in 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:— “21. Further, under Order XXI Rule 29 CPC, to stay the execution of the decree, the following conditions must be satisfied viz.: a) there must be simultaneous proceedings; b) an execution by the decree holder must be pending against the judgment debtor; c) the judgment debtor must have filed a suit against the decree holder; and d) the suit must be pending. 22. In so far as this case is concerned, the first condition viz., there must be simultaneous proceedings, is not at all satisfied by the revision petitioners herein. The suit in O.S.No.270/2004 was filed in the year 2004 and the suit was decreed on 22.06.2005. The appeal was filed in the year 2005 and the same was dismissed on 10.10.2006. The second appeal was filed in the year 2006 and the same was also dismissed on 27.01.2011. The suit in O.S.No.104/2012 was filed on 20.04.2012 whereas the execution petition in E.P.No.107/2011 was filed on 02.11.2011. In such circumstances, it cannot be 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/as CM(M) 2442/2025 Page 2 of 7 pages