Patna High Court - Orders
Byasdeo Mandal & Ors. vs Smt. Longi Devi & Ors. on 16 August, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.392 of 2009
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Byasdeo Mandal & Ors.
.... .... Appellant/s
Versus
Smt. Longi Devi & Ors.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Veena Kumari Jaiswal
Mr. Chandra Kala Jaiswal
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
ORAL ORDER
18 16-08-2012Heard the learned counsel for the appellant and the learned counsel for the respondent on the interlocutory application No.3045 of 2012.
This interlocutory application has been filed by the appellant under Order 41 Rule 5 read with Section 151 C.P.C. of the Code of Civil Procedure praying therein to stay further proceeding in execution case No.2 of 2009 pending in the Court of Subordinate Judge VIIth at Bhagalpur. The learned counsel for the appellant submitted that on 1.6.2011, interim stay was granted till the disposal of the interlocutory No.8512 of 2010. The said interlocutory application No.8512 of 2010 was listed before the Registrar General and time was prayed for, but the Registrar General rejected the stay application wrongly mentioning that nobody appears on behalf of the appellant and, therefore, the 2 Patna High Court SA No.392 of 2009 (18) dt.16-08-2012 2/3 appellant has filed this fresh stay application. The learned counsel further submitted that the plaintiffs filed the suit for declaration and recovery of possession and without any chit of paper, the lower appellate Court has decreed the suit if delivery of possession is affected during the pendency of this appeal, the appellant shall suffer serious loss and irreparable injury.
On the other hand, the learned counsel for the respondent submitted that the appellant has made totally false statement in the interlocutory application to the effect that the learned counsel prayed for time on 11.1.2012 and 27.1.2012. In fact when nobody appeared on behalf of the appellant on 11.1.2012, the Registrar General adjourned the application for 18.1.2012 but it was listed on 27.1.2012 when nobody appeared on behalf of the appellant, therefore, it was dismissed as not pressed. The learned counsel further submitted that the subject matter of the suit is agricultural land.
The learned counsel for the appellant in reply submitted that in fact the part of the subject matter of the suit is orchard.
From perusal of the order dated 1.6.2011, it appears that interim stay was granted to the appellant till the disposal of the interlocutory application No.8512 of 2010. It further appears that this interlocutory application was listed before the Registrar 3 Patna High Court SA No.392 of 2009 (18) dt.16-08-2012 3/3 General on 11.1.2012 but when nobody appeared on behalf of the appellant, it was adjourned for 18th January, 2012. Subsequently, it was listed on 27th January, 2012 and when nobody appeared, the said application was rejected, therefore, the statement made in the present interlocutory application by the appellant is contrary to the record, i.e., ordersheet of the Registrar General. From the above facts, it appears that the appellant is approaching the Court with unclean hand. Since, the subject matter of the suit property are agricultural land / or orchard and it is not the practice of Patna High Court Rule to stay delivery of possession of the property which are either agricultural or orchard as has been held by Division Bench of this Court in the case of Mostt. Ram Kali Devi Vs. Jagdish Prasad Yadav 2001 (4) P.L.J.R. 273. The prayer for stay of the further proceeding in execution case in the present case is rejected. The interlocutory application thus stands dismissed.
If the second appeal is otherwise ready for admission, the office shall list the same under Order 41 Rule 11 C.P.C.
Sanjeev/- (Mungeshwar Sahoo, J)