Jharkhand High Court
Gyanendra Pati Tripathy vs Pradeep Kumar Bhadani on 10 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.640 of 2022
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Gyanendra Pati Tripathy, aged about 80 years, Son of Late
Dr. Girendra Pati Tripathy, Resident of Tripathy Nibas,
Ward No.18, Bisunpur Road, Jhumri Tilaya, P.O. + P.S.-
Tilaya, District-Kodorma. ... ... Petitioner
Versus
1. Pradeep Kumar Bhadani, Son of Late Sadanand Prasad
Bhadani.
2. Alok Kumar Bhadani, Son of Late Sadanand Prasad
Bhadani.
Both are resident of Jhumri Tilaya, P.O. + P.S. -
Tilaya, District - Kodorma ... ... Opp. Parties
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Malay Kr. Laik, Sr. Advocate
: Mr. Nisith Kr. Sahani, Advocate
: Mrs. Manjusri Patra, Advocate
For the O.Ps. : Mr. Vishal Kr. Tiwary, Advocate
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th
Order No. 08/Dated 10 May, 2024
1. The instant petition is under Article 227 of the
Constitution of India directed against the order dated
18.08.2022 by which the petition filed on behalf of the
petitioner under Order 41 Rule 5 read with Section 151 of
C.P.C. dated 12.04.2022 has been rejected by refusing to
grant ad interim stay of the execution proceeding.
2. The brief facts of the case which are required to be
enumerated read hereunder as :-
3. It is the case of the petitioner that the original
plaintiff, namely, Sadanand Prasad Bhadani, has filed a
suit being T.S. No.6 of 1977 in the court of Sub-Judge,
Hazaribagh against the present petitioner praying for
adjudication of the title of the plaintiff over the suit
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premises, the Khas possession of the suit premises be given
by the court to the plaintiff by ejecting the defendant
therefrom and a decree of Rs.2340/- with future rent till
eviction be passed against the defendant and the same be
realised from the person and properties of the defendant.
4. The defendant appeared in the said suit and filed
written statement and contested the said suit. The
defendants in their written statement challenged the right,
title, interest of the suit premises of the plaintiff and
contested the suit on the point of maintainability and on
the issue admitted arbitrator clause mentioned in the
pleading and also subsequently for abatement of the suit.
6. Basing on the deed referred by the plaintiff, suit was
decreed by the court below through Judgment dated
15.09.2005 (Decree dated 29.09.2005).
5. Against the said Judgment the petitioner preferred
an appeal before the District Judge, Kodorma being T.A.
No.16 of 2005 and the said appeal was allowed through
Judgment dated 28.02.2013 and the case was remanded
back to the learned lower court for fresh Judgment after
setting-aside the impugned Judgment and decree dated
29.09.2005.
6. Thereafter, fresh written statement was filed by the
petitioner and issues were framed afresh and the learned
court vide order dated 25.02.2020 dismissed the appeal
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and the defendant/petitioner was directed to vacate the
house in question. The defendant/petitioner thus filed an
appeal in the appellate court being T.A. No.22 of 2020
which is pending for final disposal.
7. The plaintiff filed an execution case being Execution
Case No.1 of 2020 and the petitioner apprehending
desperate and illegal act of the plaintiff, filed an application
under Order 41 Rule 5 read with Section 151 of the Code of
Civil Procedure before the lower appellate court in T.A.
No.22 of 2020 and also filed an application under Order 41
Rule 27 of the Code of Civil Procedure in the said appeal.
8. The learned court after hearing the parties has
rejected the application under Order 41 Rule 5 read with
Section 151 of the Code of Civil Procedure vide order dated
18.08.2022 without deciding the petition under Order 41
Rule 27 of the C.P.C. against which the present petition has
been filed.
9. It is evident from the factual aspect that the Title
Suit No.06/1977 has been decreed in favour of the
respondent and for execution of the decree execution case
being Execution Case No.01/2020 has been filed by the
plaintiff who is respondent herein.
10. The petitioner/defendant/judgment debtor has
preferred an appeal being Civil Appeal No.22/2020.
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11. A petition was filed before the appellate court under
Order 41 Rule 5 on 12.04.2022 seeking therein ad interim
stay of the execution proceeding but the same has been
refused to be granted by taking note of the order passed by
the Hon'ble Apex Court in the case of Rahul S. Shah v.
Jitendra Kumar Gandhi & Others reported in 2021 (2)
JLJR (SC) 459. The said order is under challenge.
12. The matter was heard by the Coordinate Bench of
this Court and while issuing notice upon the Respondent
Nos. 1 and 2, ad interim stay of the execution proceeding in
connection with Execution Case No.01/2020 has been
passed, for ready reference the said order is being referred
hereunder as :-
"04/Dated: 05.07.2023
Issue notice to the respondent nos. 1 & 2 by
both process, for which requisites etc, under
registered process as well as through ordinary
process must be filed within two weeks.
Learned senior counsel for the petitioner
submits that execution case being Execution Case
No. 1 of 2020 is proceeding before learned Civil
Judge, Senior Division-I Koderma. As per him if the
execution case is not stayed, the petitioner will be put
to hardship as there is eminent threat of eviction and
if he is evicted the entire case will be rendered
infructuous.
Considering the aforesaid submission, I find
that there is prima facie case in favour of the
petitioner, the balance of convenience is also in
favour of the petitioner and if the petitioner is
dispossessed, he will suffer irreparable loss. Thus, I
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am inclined to stay the Execution Case No. 1 of 2020
pending before the Civil Judge, Senior Division-I,
Koderma subject to deposit of Rs.50,000/- before the
executing court. The amount will be paid in one
instalments by 19th July, 2023. The amount will not
be allowed to be withdrawn and will be subject to the
final decision of this case.
List this case after service of notice before
appropriate bench having roster."
13. Mr. M.K.Laik, learned senior counsel appearing for
the petitioner, has submitted that since the Coordinate
Bench of this Court has passed ad interim stay of the
execution by taking into consideration the prima facie case
in favour of the petitioner, the balance of convenience also
lies in favour of the petitioner and such consideration has
been given that if during pendency of the appeal the
petitioner will be dispossessed, the same will be irreparable
loss said to be irreversible.
14. The learned senior counsel, in view thereof, has
submitted that the appeal is also ready for hearing and the
petitioner, who is appellant to the appeal, is also ready to
argue the matter, hence the appeal itself may be directed to
be disposed of.
15. Mr. Vishal Kumar Tiwary, learned counsel
appearing for the respondent, has also submitted that in
the ends of justice it would be just and proper that the
appeal itself be directed to be disposed of.
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16. Having heard the learned counsel for the parties
and taking into consideration the submission made by
them, who have not argued this on merit, rather, have
insisted this Court for a direction to dispose of the appeal
which is of the year 2020, hence, this Court is of the view
that the appeal itself is to be decided at an early date.
17. The aforesaid decision will also be said to be proper
in view of the fact that the Coordinate Bench has already
passed an ad interim stay of the execution proceeding way
back in 05.07.2023, as quoted and referred hereinabove.
18. This Court is conscious that there cannot be a time
frame but considering the fact of the present case wherein
the Coordinate Bench has passed an ad interim stay of the
execution proceeding being Execution Case No.01/2020
and, as such, the propriety demands that the appeal, which
is lying pending for about last four years, be decided.
19. Accordingly, the instant petition is disposed of with
a direction to the appellate court to decide the appeal
preferably within a period of three months from today.
20. With the aforesaid observation and direction, the
instant petition stands disposed of.
(Sujit Narayan Prasad, J.)
Birendra/A.F.R.
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