Gyanendra Kumar Singh vs Ajay Prasad Singh
2022 Latest Caselaw 4696 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     C. M. P. No. 365 of 2021
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Gyanendra Kumar Singh                  ...      ....  Petitioner
                           Versus
1. Ajay Prasad Singh
2. Abdul Ram (Anjum)                   ...      ....  Opp. Parties
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioner : Mr. Rajesh Kumar, Advocate For the Opp. Parties :

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Oral Order 03 / Dated : 23.11.2022

1. The instant civil misc. petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 16.08.2021 passed by the Sub Judge-VI, Ranchi in Execution Case No. 03 of 2020 whereby and whereunder the petition filed under Order XXI read with Section 151 of C.P.C. has been rejected.

2. The petitioner is the plaintiff in Title Suit No. 56 of 2005 which was filed for specific performance of agreement. The suit has been decreed in favour of the plaintiff vide judgment dated 06.07.2019.

3. In pursuance of the direction passed by the Trial Court for execution of the registered sale deed, Rs. One Crore and Seven Lakh has been deposited on 21.09.2019 before the Executing Court.

4. The defendants-judgment debtors have preferred F.A. No. 292 of 2019 which is now pending before the Co-ordinate Bench of this Court.

5. It is submitted by learned counsel for the petitioner that this is a classical case of delay after the suit being decreed in which after the deposit of the amount, the sale deed is neither being executed nor the amount deposited before the Executing Court is permitted to be withdrawn and substituted by a bank guarantee.

6. The petitioner is the decree holder who had approached the Executing Court for permission to replace the decretal amount by a bank guarantee which has been rejected by the Court below for the reason that there is no such provision in the Code with regard to it. Decree holder quite naturally finds himself caught in a bind of depositing huge decretal amount in the executing Court, without any near prospect of getting the fruits of the decree. This will have an unintended consequence of loss of interest over the decretal amount.

7. Another intriguing factor is why the trial Court is not proceeding with the execution of the decree, when there is no stay over the execution by the appellate court. In any case mere filing of an appeal does not operate as a stay of the execution proceeding. The executing Court should have executed the decree as there is no stay by the Court in the first appeal. The learned Executing Court should keep in mind the directions of Hon'ble he Apex Court in Rahul S. Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418 wherein the execution proceeding has been directed to be concluded within six months.

Under the circumstance, learned executing court is directed to proceed and conclude the execution proceeding within six month.

The instant civil misc. petition stands disposed of.

(Gautam Kumar Choudhary, J.) AKT