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Most. Sonamati Devi vs Sanjay Kumar Gupta & Ors on 17 June, 2014

Author: Mungeshwar Sahoo

Bench: Mungeshwar Sahoo

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                       First Appeal No.68 of 2012
                ======================================================
                Most. Sonamati Devi
                                                                    .... ....   Appellant/s
                                                  Versus
                Sanjay Kumar Gupta & Ors
                                                                    .... .... Respondent/s
                ======================================================
                Appearance :
                For the Appellant/s    :    Mr. Satyendra Rai
                For the Respondent/s    :   Mr.
                ======================================================
                CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
                SAHOO
                ORAL ORDER


10   17-06-2014

1. Heard the learned counsel, Mr. Aditya Narayan Singh No.1 on behalf of the appellant and the learned counsel, Mr. Chandrakant, appearing on behalf of the respondent on the interlocutory application No.8264 of 2012.

2. This interlocutory application has been filed by the defendant No.2 appellant praying for stay of the operation of the impugned Judgment. However, at the time of argument, the learned counsel for the appellant submitted that it is mistake on the part of the appellant instead of praying for stay of further proceeding in execution case No.3 of 2012 pending in the Court of Sub Judge I, Siwan, prayer has been made for stay of operation of 2 Patna High Court FA No.68 of 2012 (10) dt.17-06-2014 2/4 the impugned Judgment. The learned counsel submitted that he may be permitted to make necessary correction in the prayer portion of the interlocutory application during the course of the day. Prayer is allowed.

3. The learned counsel further submitted that subsequently supplementary affidavit has been filed on 11.12.2013 wherein at paragraph 2, the appellant has specifically mentioned that in fact the interlocutory application has been filed for stay of further proceeding in execution case No.3 of 2012. The learned counsel for the appellant submitted that suit for specific performance was filed by the plaintiff respondent against the respondent No.2 with respect to the suit property which is residential building. In that suit, the appellant appeared and filed application under Order 1 Rule 10 C.P.C. claiming that she has got title to the property because the property in the suit is a joint family property. The application was allowed by the Court below and the appellant was added as defendant No.2 in the suit. In fact the appellant is residing in the suit premises and, therefore, if during the pendency of this appeal, the further proceeding of execution case is not stayed, the appellant will be dispossessed from her residential house.

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4. On the other hand, the learned counsel for the respondent submitted that in fact the appellant was not necessary party to the suit for specific performance because the contract was entered into between the plaintiff respondent No.1 and the defendant No.1 respondent No.2 but the appellant was wrongly made party. However, her claim that the property is joint family property have already been disbelieved by the Court below and the Court below in the impugned Judgment has clearly recorded a finding that there had already been partition and the suit property has been allotted in the share of the defendant No.1 respondent No.2 and, therefore, decreed the plaintiff respondent No.1 suit for specific performance of contract.

5. Admittedly, the suit was filed for specific performance of contract. The appellant was made defendant No.2. The plaintiff never challenged the order whereby she was added as party. Moreover, whether she was necessary party or nor or she should have been heard or not or whether appeal is maintainable or not at present, the same is not required to be considered because it is admitted fact that the suit property is residential building wherein it is admitted that the appellant is residing.

6. Considering the facts and circumstances of the case, the 4 Patna High Court FA No.68 of 2012 (10) dt.17-06-2014 4/4 interlocutory application is allowed and the further proceeding in execution case No.3 of 2012 pending in the Court of Sub Judge Ist, Siwan is stayed during the pendency of the First Appeal.

7. The order may be communicated to the Court below through Fax at the cost of the appellant.

(Mungeshwar Sahoo, J) Sanjeev/-

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