Case Note & Summary
The petitioners, Lawrance Pereira and Juliana Pereira, filed Writ Petition No. 611 of 2023 challenging the order dated 06.09.2023 passed by the Executing Court in Special Execution Application No. 13/2017/B, which refused to stay the execution proceedings. The petitioners claimed to be Mundkars (tenants) of a dwelling house in Calangute, Goa, and had filed a declaration suit before the Mamlatdar under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. The respondent No. 1, M/s Kay Jay Constructions Co. Pvt. Ltd., had obtained a decree for specific performance against respondent Nos. 2 and 3 (Maria Pinto and Bernard Pinto) in Special Civil Suit No. 3/2010, and was seeking execution. The petitioners filed an application under Order XXI Rules 97, 99, and 101 of the Code of Civil Procedure, 1908 (CPC) claiming right, title, and interest in the property as Mundkars and sought a stay of execution. The Executing Court dismissed the application, holding that the mere filing of a declaration suit does not entitle the petitioners to a stay. The High Court, after hearing arguments, dismissed both writ petitions, holding that the Executing Court had correctly exercised its discretion and that the petitioners failed to establish a prima facie case for stay. The court also noted that the writ petitions against an interlocutory order were not maintainable as no jurisdictional error was shown.
Headnote
A) Civil Procedure Code - Execution Proceedings - Stay of Execution - Order XXI Rules 97, 99, 101 - The petitioners, claiming to be Mundkars, filed an application in execution proceedings seeking stay, arguing that a declaration suit was pending before the Mamlatdar. The Executing Court refused to stay, holding that mere filing of a suit does not entitle a party to stay. The High Court upheld this, stating that the executing court has discretion and the petitioners failed to establish a prima facie case for stay. (Paras 4-10)
B) Mundkar Rights - Declaration Suit - Effect on Execution - The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 - The petitioners claimed Mundkar status and filed a declaration suit before the Mamlatdar. The court held that the pendency of such a suit does not automatically stay execution proceedings; the executing court must independently assess the claim. (Paras 6-12)
C) Writ Jurisdiction - Interlocutory Orders - Maintainability - The High Court held that a writ petition against an interlocutory order refusing stay is not maintainable unless there is a grave injustice or jurisdictional error. The petitioners failed to demonstrate any such error. (Paras 13-15)
Issue of Consideration
Whether the Executing Court was justified in refusing to stay the execution proceedings despite the petitioners claiming Mundkar rights and filing a declaration suit before the Mamlatdar.
Final Decision
Both writ petitions are dismissed. The order of the Executing Court dated 06.09.2023 refusing to stay the execution proceedings is upheld. No order as to costs.
Law Points
- Order XXI Rule 97
- 99
- 101 CPC
- Mundkar rights
- stay of execution
- jurisdiction of executing court
- maintainability of writ petition against interlocutory order
Case Details
2024 LawText (BOM) (04) 163
Writ Petition No. 611 of 2023 with Writ Petition No. 848 of 2024 (F)
Mr. Abhijeet Gosavi, Mr. Amay Phadte, Mr. Guruprasad Naik, Mr. Austin C. D'Souza for Petitioners; Mr. Jatin Ramaiya, Mr. Omkar Thakur for Respondent No. 1; Mr. Kapil Kerkar for Respondent Nos. 2 and 3
Mr. Lawrance Pereira and Mrs. Juliana Pereira
M/s Kay Jay Constructions Co. Pvt. Ltd., Mrs. Maria Sebastiana Pinto, Mr. Bernard Ignatius Pinto
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Nature of Litigation
Writ petitions challenging the order of the Executing Court refusing to stay execution proceedings in a decree for specific performance.
Remedy Sought
The petitioners sought to set aside the Executing Court's order dated 06.09.2023 and to stay the execution proceedings pending disposal of their Mundkar declaration suit before the Mamlatdar.
Filing Reason
The petitioners claimed to be Mundkars of the suit property and filed an application under Order XXI Rules 97, 99, 101 CPC in the execution proceedings, which was rejected by the Executing Court.
Previous Decisions
The Executing Court in Special Execution Application No. 13/2017/B passed an order on 06.09.2023 refusing to stay the execution proceedings.
Issues
Whether the Executing Court was justified in refusing to stay the execution proceedings despite the petitioners claiming Mundkar rights and filing a declaration suit before the Mamlatdar.
Whether the writ petitions against an interlocutory order of the Executing Court are maintainable.
Submissions/Arguments
Petitioners argued that they are Mundkars and have filed a declaration suit before the Mamlatdar, and therefore the execution should be stayed to protect their rights.
Respondent No. 1 argued that the petitioners have no right, title, or interest in the property and the Mundkar claim is frivolous; the executing court rightly refused stay.
Ratio Decidendi
The mere filing of a declaration suit before the Mamlatdar claiming Mundkar rights does not automatically entitle a party to a stay of execution proceedings. The Executing Court has discretion to assess the prima facie case and balance of convenience, and its refusal to stay is not interfered with unless there is a jurisdictional error or grave injustice.
Judgment Excerpts
The Petitioners are the Objectors in Special Execution Application No. 13/2017/B, who filed an Application under Order XXI, Rule 97, 99 and 101 of CPC thereby claiming that the Petitioners have right, title and interest in the suit property as Mundkars and since a Petition is filed for declaration of Mundkar before the Mamlatdar, the execution be stayed.
The Executing Court refused to stay the execution proceedings, holding that mere filing of a suit does not entitle a party to stay.
Procedural History
The petitioners filed an application under Order XXI Rules 97, 99, 101 CPC in Special Execution Application No. 13/2017/B seeking stay of execution. The Executing Court rejected the application on 06.09.2023. The petitioners then filed Writ Petition No. 611 of 2023 challenging that order. Subsequently, they filed Writ Petition No. 848 of 2024 (F) which was connected. Both petitions were heard together and dismissed on 15.04.2024.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXI, Rules 97, 99, 101
- Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975:
