Ishwar vs Kanwalram
2025 Latest Caselaw 3433 Chatt

Citation : 2025 Latest Caselaw 3433 Chatt
Judgement Date : 26 August, 2025

Chattisgarh High Court

Ishwar vs Kanwalram on 26 August, 2025

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       HIGH COURT OF CHHATTISGARH AT BILASPUR

                              SA No. 384 of 2023

                          ISHWAR versus KANWALRAM
                                Order on Board


26/08/2025            Mr. Raj Kumar Pali, Adv. for the appellants/defendants.
                      Mr. Viprasen Agrawal, counsel for respondent No. 1.

Mr. Santosh Soni, Govt. Adv. for the State /respondent No. 2.

Heard on I.A. No. 3/2025, which is an application under Order 6 Rule 17 of Civil Procedure Code.

Learned counsel for the appellants/defendants would submit that both the courts below have decreed civil suit filed by respondent No. 1/plaintiff treating the suit property to be ancestral property whereas it is self acquired property of Taturam, grand father of appellants / defendants. He further submits that appellants / defendants want to amend their pleading in respect of aforesaid facts, hence, application under Order 6 Rule 17 of the CPC may be allowed.

Counsel for respondent No. 1 /plaintiff strongly opposes the application filed by the defendants that in the second appellate stage, such amendment cannot be permitted, hence, the application may be rejected.

Since both the courts below have passed impugned judgments & decree treating the suit property to be ancestral

property, if it was not the ancestral property, then defendants ought to have averred aforesaid facts in their written statement, which they did not do at appropriate stage i.e. before trial Court as well as before appellate Court, hence, proposed amendment cannot be permitted in the second appellate stage. However, appellants/defendants may file application under Order 41 Rule 27 of the CPC to substantiate their contention.

Also head on admission.

This appeal is admitted for hearing on the following substantial question of law :-

" Whether finding recorded by trial court and upheld by first appellate Court that suit property is ancestral property of plaintiff & defendants, is perverse & illegal ?

Issue notice to respondent on memo of appeal alongwith aforesaid substantial question of law.

Mr. Viprasen Agrawal, Advocate accepts notice on behalf of respondent No.1 / plaintiff and Mr. Santosh Soni, Govt. Advocate accepts notice on behalf of respondent No. 2, hence, issuance of notice to them, is dispensed with.

Also heard on I.A. No.01/2025, application under Order 41 Rule 5 of the Civil Procedure Code for interim relief/stay.

Counsel for the appellants / defendants would submit that in compliance of judgment & decree passed by the trial Court and upheld by the First Appellate Court, execution proceeding has been initiated by respondent No. 1/plaintiff, hence, the same may be stayed.

Per contra, counsel for respondent No. 1/plaintiff would submit that there is concurrent finding of both the courts

below, hence, execution proceedings ought not to have been stayed.

Since, the appellants /defendants have filed instant second appeal and if effect & operation of the impugned judgment & decree is not stayed, the very purpose of filing second appeal would be frustrated, hence, I am inclined to allow the aforesaid application.

Consequently, it is directed that effect and operation of the impugned judgment and decree dated 03.07.2023 passed by First Additional District Judge, Bemetara, District Bemetara in Civil Appeal No. A/03/2023 shall remain stayed till disposal of this appeal subject to furnishing surety of Rs.50,000/- by appellants/defendants herein to the satisfaction of the concerned trial Court/executing Court within a period of two months from today for due performance of the decree ultimately to be passed by this Court.