Patna High Court - Orders
Upendra Sah @ Upendra Gupta vs Girja Devi & Ors on 29 April, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court CWJC No.2734 of 2012 (4) dt.29-04-2014
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2734 of 2012
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Upendra Sah @ Upendra Gupta
.... .... Petitioner/s
Versus
Girja Devi & Ors
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Surendra Kishore Thakur
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
ORAL ORDER
4 29-04-2014Heard the learned counsel for the parties.
By the impugned order dated 21.01.2012, the learned Munsif Sadar, Purnea rejected the application filed by the petitioner for stay of further proceeding of Execution Case No.6 of 2010 on the ground that Gram Kachahari Appeal No.1 of 2011 is pending before the Court of Sub Judge.
The grievance of the petitioner is that against the judgment and decree passed by full bench of the Gram Panchayat Kachahary, appeal is maintainable under Section 112 of the Gram Panchayat Act before the Subordinate Judge and in the present case, the full bench has passed the judgment and decree. Therefore, the petitioner has filed Gram Kachahary Appeal No.1 of 2011 before the Subordinate Judge and filed an application before the Executing Court praying for stay of further proceeding in view of the provision as contained in Section 112(4) of the Patna High Court CWJC No.2734 of 2012 (4) dt.29-04-2014 2 Gram Panchayat Act. The court below by the impugned order held that the petitioner herein has filed the appeal before the wrong forum and, therefore, rejected the application filed by the petitioner.
It may be mentioned here that the appeal is still pending before the Court of Sub Judge, Purnea. This question as to whether the appeal is maintainable or not has not been decided by the appellate court but the executing court is deciding the maintainability of the appeal before the Sub Judge as if he is hearing the appeal. Whether the appeal is maintainable or not, it is a matter to be decided by the appellate court and the executing court has got no jurisdiction to decide the same or decide the maintainability of the appeal. In such circumstances, in my opinion, the court below has exceeded his jurisdiction by deciding forum of appeal where the appeal will be filed against the judgment and decree of the Gram Kachahary.
Accordingly, the impugned order is set aside. Thus, this writ application is allowed. The further proceeding in Execution Case No.6 of 2010 pending in the court of Munsif Sadar, Purnea shall remain stayed till the disposal of the appeal.
Saurabh/- (Mungeshwar Sahoo, J)