Jharkhand High Court
Ashok Kumar Sultania & Anr vs Chandra Kant Rathore & Ors on 2 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 134 of 2019
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Ashok Kumar Sultania & Anr. .... .... .... Appellants
Versus
Chandra Kant Rathore & Ors. .... .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellant : Mr. Ayush Aditya, Advocate
For the Respondent : Mr. J.K. Pasari, Advocate
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Order No.08 Dated- 02.02.2023
I.A. No.9684 of 2022
Learned counsel for the respondent nos.1 and 2 submits that this
interlocutory application has been filed with a prayer to vacate the stay
granted by this Court on 11.08.2022.
It is submitted by the learned counsel for the appellants that in
I.A. No.1452 of 2020 dated 11.08.2022, the predecessor judge in this
roster has ordered the execution case no.68 of 2019 pending in the
court of Civil Judge (Sr. Div.)-III, Dhanbad will remain stayed till
further orders.
It is submitted by the learned counsel for the respondent nos.1
and 2 that the respondent nos.1 and 2 of this appeal were the plaintiffs
of Title Suit No.310 of 2009. It is next submitted that the trial court
dismissed the Title Suit No.310 of 2009. Against the judgment and
decree passed by the learned trial court, respondent nos.1 and 2 of this
appeal filed Civil Appeal No.13 of 2018. It is next submitted that Civil
Appeal No.13 of 2018 has been allowed by the impugned judgment
and decree of this appeal. It is then submitted that due to the stay
granted by this court the eviction proceedings has been stopped by the
learned executing court and the plaintiffs are not able to get the
decreetal premises as decreed by the first appellate court. It is next
submitted that under Section 22 of Hindu Succession Act, 1956 the
legal heirs have preferential right to acquire property if any heir
intended to sell his share even if the property in question is
commercial one. It is then submitted that brushing aside the said
statutory law the prayer has been granted to stay of eviction of
concerned defendant. It is further submitted that the defendant no.3 of
Title Suit No.310 of 2009 being one of the heirs of the property has sold
her share to the defendant nos.1 and 2 who are outsiders in violation
of the law. Hence, it is submitted that the stay granted vide order
dated 11.08.2022 be vacated.
Perusal of the record reveals that vide order dated 11.08.2022,
this second appeal has been admitted after formulating substantial
questions of law and though notices were issued to the respondent
nos. 3 to 11 notice has been validly served upon the respondent nos.10
and 11 but notice could not be validly served upon the respondent
nos.3 to 9 and the same returned with the report that they are not
residing in the given address.
On being asked from the learned counsel for the respondent
nos.1 and 2 as to whether he is aware about the present residential
address of the respondent nos.3 to 9. Mr. Pasari submits that he will
take instruction from his client and he will intimate this court in
writing within two weeks; the present and correct address of the
respondent nos. 3 to 9, after supplying the copy of such information to
the appellant.
This second appeal has already been admitted and is ready for
hearing and the same can be heard on any date after the service of
notice upon the respondent nos.3 to 9 is effected. Hence at this stage,
this court is not inclined to vacate the stay order passed by this court
vide order dated 11.08.2022 at this. Therefore this interlocutory
application being without any merit is dismissed.
(Anil Kumar Choudhary, J.)
S.A. No. 134 of 2019
Notice issued to the respondent nos.3 to 9 has returned with the
report that they have not been found in the address given.
Issue fresh notice to the respondent nos.3 to 9.
The appellants are directed to file fresh requisites for service of
notice on the respondent nos.3 to 9 in correct and present adress by
registered post with A/D as well as under ordinary process within
three weeks failing which; this appeal shall stand dismissed without
further reference to the Bench.
Rule is made returnable within six weeks.
List this appeal after receipt of the service report of the notice
issued to the respondent nos.3 to 9.
Sonu-Gunjan/- (Anil Kumar Choudhary, J.)
