IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10608 of 2010 BIPIN BIHARI SINHA, S/O LATE BRAJ KISHORE PRASAD, R/O CLUB ROAD, P.S. MITHANPURA, P.O. RAMNA, TOWN OF MUZAFFARPUR, DISTRICT-MUZAFFARPUR. ---------------Petitioner Versus HARISH JAISWAL, S/O LATE JAMUN PRASAD, R/O CLUB ROAD, P.S. MITHANPURA, P.O. RAMNA, TOWN OF MUZAFFARPUR, DISTRICT- MUZAFFARPUR. ---------------------Respondent ----------- For the petitioner:- Mr. Naresh Chandra Verma. Mr. Arun Kumar Lal. Mr. Ram Kumar Singh. -------------- 4. 01.09.2010 Heard learned counsel for the petitioner and learned counsel for the respondent. 2. This writ petition has been filed by the petitioner challenging order dated 19.05.2010 by which Execution Munsif, Muzaffarpur rejected the application filed by the petitioner under Order 21, Rule 29 read with Section 151 of the Code of Civil Procedure for staying further proceeding of Execution Case No. 10/5 of 2005. 3. The aforesaid execution case was filed by plaintiff-respondent for execution of decree passed in Eviction Suit No. 49 of 1989, against defendant-petitioner, which was affirmed up till this Court in second Appeal No. 280 of 2005, which was dismissed on 30.09.2008. 4. Learned counsel for the petitioner vehemently challenges the impugned order of the executing Court stating that the petitioner had paid the entire consideration money to the respondents as per agreement 2 for sale but when even then no sale deed was executed he had to file Title Suit No. 155 of 1990, for specific performance of the agreement for sale. He further submits that the executing Court should not have dismissed the petition merely because the title suit filed by the petitioner was for specific performance of contract. In this connection learned counsel for the petitioner has relied upon several decisions of this Court in the cases of Gajendra Pd. Sinha & Anr. Vs. Man Mohan Pd. Sinha, reported in 2000 (1) PLJR 219, Srimati Ramkumari Debi Vs. Tarkeshwar Nath Pandey & Ors. reported in 1974 BLJR 644 and Subhas Kumar Singh & Ors. Vs. Sheo Balak Singh & Ors. reported in AIR 1975 Pat. 307, as well as the order of the Apex Court in the case of Union of India & Ors. Vs. S. K. Saigal & Ors. reported in A.I.R. 2007, Supreme Court 1211. 5. From the arguments raised by learned counsel for the petitioner as well as from the materials on the record, it is quite apparent that the judgment and decree of eviction passed in the eviction suit against the petitioner has been affirmed up till this Court and it has attained finality, hence, the executing Court is duty bound to execute the said decree unless the execution case is stayed by any Court of law. 6. So far as the provision of Order 21, Rule 29 of the Code of Civil Procedure and the case Laws are 3 concerned the law is well settled that such power of the Court is discretionary and it shall not be exercised merely because another suit with regard to the same property is pending between the same parties. All the decisions mentioned above cited on behalf of the petitioner does not show that in such circumstances executing Court is bound to stay the execution proceeding. 7. The executing Court has very carefully considered the matter in detail and has rightly come to the conclusion that there was no occasion for stay of further proceeding of the execution case on the said ground. The executing Court was quite justified in holding that merely because of the filing of any suit for specific performance of contract or for any other reason, the execution case for executing the eviction decree in an eviction suit cannot be legally stayed. It further transpires that due to such frivolous and flimsy reasons the execution case is lingering since, 2005 and the petitioner is not allowing it to reach its ultimate conclusion. 8. In the said circumstances, this writ petition is dismissed with a direction to the executing Court to expedite the proceeding of the execution case so that it reaches its ultimate conclusion within three months from the date of receipt/production of a copy of this order. Anand Kr. (S.N. Hussain, J.)