Indian Kanoon - Search engine for Indian Law

2. Earlier one title suit bearing No. 17 of 1981 was filed in the court of the Munsif, Keonjhar where the present petitioner in C.R. 279 of 1991 was defendant No. 2. The said suit was filed under Section 6 of the Specific Relief Act, 1963 by the present opposite party No. 2 in C.R. No. 279 of 1991. The suit was decreed in favour of the present opposite party No. 1 the plaintiff in the said suit against which civil revision No. 721 of 1982 was preferred in this court and this court by the order dated 3-8-87 had dismissed the civil revision though observed that the trial court was not right in coming to its conclusion in regard to the property in Schedule A but nevertheless declined to interfere with the order invoking its jurisdiction under Section 151, C.P.C. The law is well settled that restoration of possession in a suit under Section 6 of the Specific Relief Act is subject to a regular title suit, and the person who has the real title or even the better title cannot therefore be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back the possession. The scope of such a suit is limited. Hence there is provision for the loosing party to claim declaration of his title and get recovery of possession.

3. Defendant No. 2 and other defendants of Title Suit No. 17 of 1981 filed two suits, one by defendant No. 2 in T.S. No. 17 of 1981 and the present pro forma opposite parties 2 and 3 bearing Title Suit No. 1 of 1989 and the other one by another brother of this defendant No. 2 who was made a defendant in Title Suit No. 17 of 1981 bearing Title Suit No. 78 of 1987 claiming his title to the same property as in Title Suit No. 1 of 1989. Both these suits were heard analogously and dismissed. Against that order, the present petitioner-plaintiff No. 1 in Title Suit No. 1 of 1989 had preferred a Title Appeal No. 3 of 1991 in the court of the District Judge, Keonjhar whereas the plaintiff in Title Suit No. 78 of 1987 filed Title Appeal No. 2 of 1991 in the same court against the same impugned judgment and decree.

4. It is worthwhile to mention that the plaintiff in Title Suit No. 17 of 1981 after confirmation of the decree in civil revision No. 721 of 1982, started a Executive case bearing No. 6 of 1988 in the court of the Munsif, Keonjhar to take delivery of possession and objection was filed under Section 47 of the C.P.C. by the present petitioner who as already stated was defendant No. 2 in the aforesaid Suit No. 17 of 1981 and an adverse order was passed against him. Against that order he preferred civil revision No. 876 of 1988 in this court and this court by the order dated 3-1-1990 stayed further proceeding Execution Case No. 6 of 1988 subject to depositing Rs. 250/- per month. Admittedly this amount was being deposited till 9-1-90 and ceased to be deposited after the civil revision came to an end. In the meanwhile an application bearing civil revision No. 96 of 1990 was filed in this court with a prayer to stay further proceeding of the Execution Case No. 6 of 1988 started to execute the decree passed in Title Suit No. 17 of 1981. At that time the suits in the trial court (T.S. Nos./1/ 89 and 78/87) were pending. This court passed the order staying further proceeding of the Execution case No. 6 of 1988 in the court of the Munsif, Keonjhar arising out of Title Suit No. 17 of 1981 by its order dated 11-5-1990. Thereafter, the suits were disposed of by the learned Subordinate Judge, Keonjhar and both the suits were dismissed. Appeals were preferred before the District Judge, Keonjhar which were numbered as Title Appeal No. 3 of 1991 (arising out of T. S. No. 1 of 1989) and Title Appeal No. 2 of 1991 (arising out of Title Suit No. 78 of 1987). An application has been made by the appellants in both the Title Appeals under Section 151, C.P.C. for stay of the Execution Case No. 6 of 1988 pending in the court of the Munsif, Keonjhar as the earlier order of stay passed by this court in C.R. No. 96 of 1990 ceased to operate on the conclusion of the civil revision. The District Judge, Keonjhar as an appellate authority allowed the petition slaying further proceeding in Execution Case No. 6 of 1988 (arising out of T. S. No. 17 of 1981) till disposal of the Title Appeals Nos. 2 and 3 of 1991 subject to depositing an amount of Rs. 5,000/- in cash by the petitioners in the court of the Munsif, Keonjhar. The appellants were further directed to deposit the defaulted amount till date (28-3-91) in the court of the Munsif, Keonjhar. He also directed the appellants-petitioners not to obstruct the opposite parties in repairing and plastering their adjoining undisputed house mentioned in the plaint as 'Mithalilal shop' and directed to put up the matter on 23-4-91 for removal of defects and hearing on the office note. By his order dated 26-3-91, this order was passed as a common order in both the Title Appeals. Against this order, both the revisions have been, filed.

8. For whatever has been stated above, the appellate court's authority is confined under Order 41, Rule 5(1) to stay the execution of a decree appealed from, for sufficient cause. Since the stay sought for before the appellate court was not the stay of execution of the decree appealed against, but the execution of the decree passed in another suit by another court namely the Munsif, Keonjhar in Title Suit No. 17 of 1981, the present appellate authority had no jurisdiction to pass an order of stay of the execution case started to enforce the decree in Title Suit No. 17 of 1981.