Sanjay Jaiswal vs Unknown
2022 Latest Caselaw 5158 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      C.M.P. No. 1012 of 2022
         Sanjay Jaiswal                       .... .. ... Petitioner(s)

         1.Mahendra Singh
         2.Poonam Jaiswal
         3.Pratima Chatterjee                         .. ... ...Opp. Party(s)
                        ...........

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........

For the Petitioner(s) : Mr. Rahul Kr. Gupta, Advocate Mr. Rakesh Kr. Singh, Ms. Swati Singh, Advs.

         For the Opp. Party(s)        :
                                    .............

02/ 20.12.2022. The surviving defect(s) i.e. Defect nos.1 to 3, as pointed out by the office are ignored for the present.

The instant CMP has been filed for appropriate order/ direction to the learned Executing Court of learned Civil Judge (Sr. Division)-II, Ranchi to proceed with Execution Case No.156 of 2016 expeditiously.

It is submitted that the petitioner is the plaintiff/ decree holder and the suit was decreed in the year 2016 and against the said judgment, first appeal being F.A. No.65 of 2016 was filed by the respondent(s)/ defendant(s) and while admitting the said Appeal, stay of further proceeding of said execution case was passed under Order 41 Rule 5 CPC by this Court.

Later, with the enhancement of pecuniary jurisdiction of the District Judge, the appeal was transferred to the Court of Principal District Judge/Judicial Commissioner, Ranchi in the year 2018 and the said First Appeal was renumbered as Civil Appeal No.145 of 2019 and is pending before the learned court below for hearing of the same.

It is submitted that no order of stay of the said Execution Case has been passed by the learned court below. Earlier one Writ Petition being W.P.(C) No.5530of 2019 was filed by the judgment-debtor with a prayer to stay of execution proceeding. However, an interim order was passed in this case till the next date of hearing on 08.11.2019 and thereafter on 20.10.2022, the said Writ Petition was dismissed as withdrawn.

The main grievance of the petitioner is that at present, despite there being no order of stay by the First Appellate Court, the learned executing Court is not proceeding with the execution proceeding. The earlier order of stay has lost force in the light of ratio Asian Resurfacing of Road Agency (P) Ltd. Vs. CBI, reported in 2018 (16) SCC 299, and there has been no renewal of stay by the learned Court below in Civil Appeal No.145 of 2019.

The appeal does not operate as stay of execution proceeding unless there is specific order of stay. From the records of the case, it appears that there is no order of stay as of now. Under the circumstances, the Executing Court of learned Civil Judge (Sr. Division)-II, Ranchi is directed to proceed with the execution proceeding. The learned appellate Court is directed to dispose of Civil Appeal No.145 of 2019 within two months after reopening of X-Mas holidays.

The instant CMP stands disposed of.

(Gautam Kumar Choudhary, J.) Sandeep/