Jharkhand High Court
Sitaram Chauhan vs Smt. Moteshwari Devi on 3 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 224 of 2022
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Sitaram Chauhan .... .... .... Petitioner
Versus
1. Smt. Moteshwari Devi
2. Jayram Chauhan
3. Hareram Chauhan
4. Bhupesh Chauhan
5. Smt. Urmila Devi
6. Pramila Devi .... .... .... Opposite Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioner : Mr. Rohit Roy, Advocate
For the Opp. Parties : Mr. Nikhil Ranjan, Advocate
Oral Order
05/ Dated : 03.11.2022
Instant petition has been filed for quashing the order dated
23.04.2022 passed by Additional Judicial Commissioner-XXI, Ranchi in Misc.
Civil Application No.18 of 2022 whereby and whereunder the petition filed
under Order XLI Rule 5 of the C.P.C. for stay of Execution Case No.288 of
2017, was rejected.
2. Petitioner is plaintiff under Partition Suit No.42 of 2010 filed for
preliminary decree declaring 1/7th share in the suit property. In this suit,
mother and brothers have been impleaded as defendants.
3. Defendant No.1, who happens to be the mother, executed registered
sale deed with respect to the suit property in favour of defendant No.2 during
the pendency of the suit claiming it to be her own Stridhan.
4. After the execution of sale deed, defendant no.2 preferred a counter
claim in the partition suit.
5. The suit of the plaintiff was dismissed and the counter claim was
allowed against which the petitioner/plaintiff has preferred Civil Appeal No.56
of 2018 and defendant no.2 moved the Executing Court for execution of
counter claim which was decreed in the partition suit.
6. It is submitted by the learned counsel that respondent no.2 also
moved this Court in C.M.P. No.174 of 2021 with a prayer for expeditious
disposal of Execution Case No.288 of 2017 by suppressing the pendency of
Civil Appeal and obtained an order from the Hon'ble Court for expeditious
disposal of execution proceeding vide order dated 01.10.2021.
7. This petitioner preferred C.M.P. No.45 of 2022 for expeditious
disposal of Civil Appeal No.56 of 2018 and no order in this regard was passed
by the Court and liberty was granted to pursue under Order XLI Rule 5 of
C.P.C., which has been rejected, hence the instant petition.
8. It is submitted by learned counsel that it is settled principle of law in
view of judgment of Hon'ble Supreme Court in the case of Atma Ram
Properties (P) Ltd. Vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705
in which Supreme Court has held that sufficient cause in favour of the
appellant, the execution proceeding will be stayed under Order 41 Rule 5
C.P.C. Dispossession during the pendency of an appeal of a party in
possession, is generally considered to be "substantial loss" to the party
applying for stay of execution within the meaning of Clause (a) of sub-rule (3)
of Rule 5 of Order XLI of the C.P.C.
9. It is submitted that dispossession during the pendency of appeal will
cause irreparable injury and substantial loss to the petitioner. This appeal is
still pending before the learned Court below.
10. It is submitted by the learned counsel on behalf of opposite parties
that the petitioner will not suffer any substantial loss by execution of the
decree passed in favour of opposite party no.2 on his counter claim in view of
the fact that he has got his share in partition of ancestral property located at
village Chakki (U.P.) and also the share in the self-acquired property by his
father. This is precisely the reason for which the petition for stay has been
rejected by the learned Court below. Further there is specific direction by this
Court passed in C.M.P. No.174 of 2021 to expedite the hearing of Execution
Case No.288 of 2017 and in view of specific direction, the learned Court is
proceeding for execution.
11. Having considered the rival submissions on behalf of both sides, the
Appellate Court is directed to dispose of the Civil Appeal No.56 of 2018
preferably within a month of this order.
12. With this observation, this Civil Miscellaneous Petition stands
disposed of. I.A. No.8702 of 2022 is also disposed of.
(Gautam Kumar Choudhary, J.)
Anit
