Patna High Court - Orders
Sheo Prasad Singh And Ors vs Nathuni Ram And Ors on 17 July, 2023
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.396 of 2008
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Sheo Prasad Singh and Ors
... ... Appellant/s
Versus
Nathuni Ram and Ors
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Dhanendra Chaubey, Advocate
Mr.Arun Kumar Lal, Advocate
For the Respondent/s : Mr. Arun Kumar Tiwari, Advocate
Mr. Pawan Kumar Verma, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV ORDER
17 17-07-2023The learned counsel for the appellants as well as learned counsel for the respondents have already been heard on I.A. No.05 of 2019 on the last date of hearing.
2. The present interlocutory application has been filed on behalf of the respondents under Order XXXIX Rule 4 of the Code of Civil Procedure praying therein to vacate the ad-interim stay against the proceeding in Execution Case No.9 of 2008 arising out of Title Appeal No. 44 of 1991/71 of 1996 pending before the learned Munsif, Kaimur at Bhabua.
3. It has been submitted by the learned counsel for the respondents that the respondents filed a Title Suit No.108/1975 before the learned Munsif, Kaimur for declaration of their title and possession and the suit was dismissed. However, the appeal of the respondents was allowed and the judgment and decree of Patna High Court SA No.396 of 2008(17) dt.17-07-2023 2/5 the learned trial court was set aside. The learned counsel further submitted that during the pendency of the title suit, the defendant Aliyar Ram, who is appellant no.30 in the present case, sold the disputed piece of land including the house of the answering respondent and the appellants, who were purchasers from Aliyar Ram forcibly ousted him from own house. The appellant no.30 namely, Aliyar Ram never contested the case and did not file any written statement. Aliyar Ram was not having any interest in the suit property, but he was said to be the owner of the suit property. The suit property had been recorded in C.S. Khatiyan in the name of Budhan Ram, the ancestor of the answering respondent and the appellants claimed that it has been wrongly recorded in the name of Budhan Ram. The appellants were claiming title through Aliyar Ram, but the said Aliyar Ram did not come forward to prove the title over the suit land which he sold to other appellants. The learned counsel further submitted that the appellants are all having their pucca houses in their village and they claimed before this Court that they are only having thatched and mud houses at the disputed plots as their residential premises and this fact is completely wrong. On the other hand, the answering respondent has only one place to live, i.e., the suit land from which he was Patna High Court SA No.396 of 2008(17) dt.17-07-2023 3/5 dispossessed as the vendees of Aliyar Ram forcibly ousted the answering respondent from the land by demolishing his thatched house and since then the answering respondent has become homeless. The learned counsel further submitted that the appellants got ad interim order ex parte making wrong submission.
4. The learned counsel has further submitted that the learned Registrar General has passed the order dated 02.09.2009 without assigning any reason and it is non-speaking order. The learned counsel further submitted that the learned Registrar General failed to consider Order XLI Rule 5 (3) of the Code of Civil Procedure which provides that no order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied-
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
As no security was asked from the appellants, the learned Registrar General further failed to notice that the ground taken in the application for stay are outside the purview of the case and are alliance to the pleadings. Thus, learned counsel Patna High Court SA No.396 of 2008(17) dt.17-07-2023 4/5 submitted that the order dated 02.09.2009 passed by the learned Registrar General granting ex parte ad interim stay should be vacated.
5. On the other hand, learned counsel for the appellants vehemently opposed the contention of the learned counsel for the respondents. Learned counsel for the appellants further submitted that even in the judgment of the learned appellate court below, the possession of the appellants have been accepted and this fact is clear from Paragraph 24 of the judgment dated 28.07.2008 of learned appellate court. From the discussion of possession in the judgment of the learned appellate court, it is very much obvious that the appellants are in possession since 1975 and it would be unjust if they are asked to vacate the suit land during the pendency of the second appeal when the appeal has been admitted on substantial questions of law regarding wrong interpretation of exhibits by the learned appellate court and finding of possession in favour of plaintiff by the learned appellate court without consideration of relevant evidence. Thus, learned counsel for the appellants submitted that there is no merit in the application of the respondent for vacating the ad interim stay granted vide order dated 02.09.2009 by the learned Registrar General.
Patna High Court SA No.396 of 2008(17) dt.17-07-2023 5/5
6. Perused the record.
7. From perusal of the impugned order dated 02.09.2009, it is clear that there has been no final hearing on the said stay petition bearing I.A. No.5638/2009 and notice was ordered to be issued to the respondents in the stay matter. Further perusal of order sheets shows the said I.A. No.5638/2009 for stay has not been moved or no orders have been passed on it.
8. In these circumstances, considering the submissions made on behalf of the appellants and without further going into the merits of the contentions of the respective parties, I do not think there is any need to interfere with the order dated 02.09.2009 passed by the learned Registrar General. Accordingly, I.A.No.05/2019 stands disposed of as rejected.
9. Hence, the matter is ordered to be listed for final hearing as per its seniority and if need be, the application for stay would be considered, otherwise this second appeal will be heard and decided.
(Arun Kumar Jha, J) V.K.Pandey/-
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