Ram Marandi And Others vs Denial Hembram And Others
2021 Latest Caselaw 3942 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                S. A. No. 123 of 2006
Ram Marandi and others                      ....   .... Appellants
                Versus
Denial Hembram and others                  ....  .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Ritesh Kumar, Advocate For Respondent nos.10(ii & iii) : Mr. Birendra Kumar, Advocate

Oral Order 14 / Dated : 21.10.2021 I.A. No. 4241 of 2021

This interlocutory application has been filed on behalf of the

appellants for substituting the legal heirs of appellant nos. 1 and 3, who

are said to have died on 27.07.2021 and 22.10.2014 respectively.

It is submitted on behalf of the appellants that being rustic villagers

and not being aware of the legal aspects, the appellants could not inform

their lawyer regarding the death of appellant no.1-Som Marandi, who died

on 22.10.2014. It is further submitted that though the appeal was filed in

the year, 2006 it was not fixed for hearing.

Learned counsel appearing for the respondents has submitted that so

far appellant no.1 is concerned, there is a delay of about 7 years and on

earlier occasion, the appeal got dismissed for default but later on restored

to its original file.

Considering the overall facts and circumstances, the delay in filing the

substitution petition is condoned and I.A. No. 4241 of 2021 is allowed

and the legal heirs and descendants of appellant nos. 1 and 3, as fully

described in paragraph nos. 2 and 3 of this application, are substituted in

their places, subject to payment of a cost of Rs.500/- to be paid to the

respondents by the appellants.

Accordingly, let the names of appellant nos. 1 and 3 be expunged. Office to do the needful.

I.A. No. 1750 of 2007

This interlocutory application has been filed by the appellants for

expunging the name of respondent no. 10 (Manjhi Soren) and for

substituting the names of his legal heirs and descendants, fully described

in paragraph no.6.

Heard learned counsel for the appellants as well as the respondents.

Having regard to the facts and circumstances mentioned in the

interlocutory application, this application is allowed.

Let the names of respondent 10 (Manjhi Soren) be expunged from the

array of the respondents and his legal heirs and descendants fully

described in paragraph-6 be substituted in his place.

I.A. No. 189 of 2007

This interlocutory application has been filed under Order XLI Rule 5

of the Code of Civil Procedure for stay of further proceedings in

Execution Case No. 07 of 2006 pending in the court of learned Sub-Judge,

Pakur.

It is submitted on behalf of the appellants that the judgment and

decree passed in the Title Suit was reversed in Title Appeal without

appreciating the evidence on record and therefore, the present Second

Appeal has been preferred against the judgment and decree passed by the

learned 1st appellate court by which the Judgment and decree of the trial

Court has been reversed. Learned Appellate Court has erred in dealing

with the customary law of the Santhal. It is further submitted that there is

balance of convenience in their favour for staying the proceedings of

Execution Case.

However, learned counsel for the respondents has opposed the submission made by the learned counsel for the appellants and is

submitted that there is bald statement regarding the balance of

convenience in favour of the appellants.

The instant appeal has been preferred against Judgment and Decree

passed in Title Appeal No 7/2003 arising out of Title Suit No. 20/1985

which was filed for declaration of title and restoration of possession. This

appeal has not been admitted and the case was earlier dismissed for

default and was subsequently restored. Where the second appeal awaits

admission under Order 41 Rule 11 the execution of the decree cannot be

stayed in view of Order 41 Rule 5.

Under the aforesaid facts and circumstances, at this stage, I am not

inclined to allow this interlocutory application for stay filed under Order

XLI Rule 5 of the Code of Civil Procedure.

Accordingly, I.A. No. 189 of 2007 is dismissed.

S. A. No. 123 of 2006 Defect no. 2 as pointed out by the office is ignored.

Put up this matter for further hearing after two weeks.

(Gautam Kumar Choudhary, J.) AKT