1 wp 4653.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4653 OF 2011 Hiraman Malu Chaudhari .. Petitioner Versus Ainurbi Salam Patel .. Respondent Shri M. S. Deshmukh, Advocate for the Petitioner. Shri P. R. Katneshwarkar, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 26TH SEPTEMBER, 2011. PER COURT : . The petitioner is the original defendant. The present respondent had filed a suit for specific performance of contract. The said suit was decreed by way of a compromise decree. The present respondent filed an execution proceedings. During the pendency of the said proceedings the present petitioner moved an application U/O 21 Rule 29 of the Code of Civil Procedure for stay of the said execution on the ground that the petitioner has filed a separate suit bearing R.C.S. No. 78/2009 contending that the said compromise decree is not binding and null and void. The said 2 wp 4653.11 application is rejected. Aggrieved thereby the present petition is filed. 2. Shri Deshmukh, the learned counsel for the petitioner submits that the Court below has failed to exercise its jurisdiction U/O 21 Rule 29 of the Code of Civil Procedure. The language of Order 21 Rule 29 is explicit and clear. The petitioner has filed a separate suit challenging the decree of which the execution is filed. In view of the pendency of said suit the execution could not proceed further in view of the provisions of Order 21 Rule 29. 3. The provisions of Order 21 Rule 29 are discretionary in nature. The decree in question is a compromise decree. Even the possession is with the present respondent. Only execution of sale deed is remained to be performed. Even if the petitioner succeeds in his suit the petitioner has right to claim restitution. No prejudice would be caused to the petitioner if the decree is executed more particularly in view of the fact that the possession is already delivered to the present respondent. 4. I do not think any error is committed by the Court in not 3 wp 4653.11 exercising its discretion in staying the execution proceedings. In view of the above the writ petition is dismissed, however, with no order as to costs. 5. Shri Deshmukh, the learned counsel submits that the petitioner has also filed an application for stay of execution in the subsequent suit i. e. R.C.S. No. 78/2009. The said application is not subject matter of the present writ petition. The Court where the said application is pending would consider the same on its own merits. [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11