Jharkhand High Court
Prem Prakash Gupta vs Balram Prasad on 27 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 1272 of 2023
1. Prem Prakash Gupta, Aged about 44 years,
2. Prem Shankar Gupta, Aged about 41 years,
3. Ratnesh Kumar, Aged about 38 years,
4. Satish Kumar, Aged about 35 years,
Sl.No. 1 to 4 all are sons of late Indrachand Sao. All are Resident of Village
Redma, P.O. & P.S. Daltonganj, District-Palamau.
5. Rabi Sao @ Rabi Kant Sao, Aged about 45 years,
6. Pradeep Sao, Aged about 43 years,
7. Sonu Kumar @ Sonu Sao, Aged about 40 years,
8. Chandar Sao @ Chandan Saw, Aged about 38 years, Sl.No. 5 to 8 all sons
of late Amit Chand Saw.
9. Raju Sao, Aged about 49 years,
10.Bablu Sao, Aged about 46 years,
11. Anup Kumar Sao, Aged about 40 years,
12. Santu Kumar Sao, Aged about 37 years,
Sl.No. 9 to 12 all sons of late Mundrika Sao,
13. Rina Quer @ Rina Kuwar, Aged about 52 years, wife of late Anil Sao,
14. Pawan Kumar, Aged about 30 years,
15. Hawan Kunwar @ Hawan Kumar, Aged about 28 years.
16. Kanchan Kunwar @ Kanchan Kumar Gupta, Aged about 26 years,
Sl.No. 14 to 16 all are sons of late Anil Sao. All are Resident of Village
Redma, Ranchi Road, P.O. & P.S. Daltonganj, District-Palamau.
...........Petitioners.
-Versus-
1. Balram Prasad,
2. Shyam Prasad,
3. Hari Prasad
Sl.No. 1 to 3 all sons of late Ganesh Prasad.
1
4. Mahesh Prasad,
5. Ramesh Prasad (wrongly mentioned as Ganesh Prasad in memo of civil
appeal)
Sl. No. 4 & 5 are son of late Laxmi Prasad.
Sl.No. 1 to 5 are Resident of Village Redma, Ranchi Road, P.O. & P.S.
Daltonganj, District-Palamau.
6. Saroj Devi, wife of Uday Prasad, daughter of late Ganesh Prasad,
Resident of Mohalla Sultanpur, P.O. & P.S. Danapur, District-Patna.
7. Sunita Devi, wife of Ramesh Prasad daughter of late Ganesh Prasad,
Resident of Ram Sagar Talab, P.O. & P.S. Gaya, District-Gaya.
.....Opposite Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners : Mr. Atanu Banerjee, Advocate
Ms. Sugandha Khalkho, Advocate
Mr. Aditya Banerjee, Advocate
For the Opp. Parties :Mr. Himanshu Kr. Mehta, Advocate
Mrs. Manjusri Patra, Advocate
Mr. Rishav Raj, Advocate
..........
07/Dated: 27/03/2025
Heard Mr. Atanu Banerjee, learned counsel for the petitioners and
Mr. Himanshu Kr. Mehta, learned counsel for the opposite parties.
2. This petition has been filed under Article 227 of Constitution of
India for setting aside order dated 08.08.2023 passed by the learned District
Judge-II, Daltonganj in Civil Appeal No. 10 of 2022 whereby petition dated
21.06.2023 filed by the petitioners under Order 41 Rule 5(1) C.P.C. has been
rejected by the learned Court.
3. Mr. Atanu Banerjee, learned counsel for the petitioners submits
that Eviction Suit No. 01 of 1988 was instituted by the respondents/plaintiffs
for eviction of the petitioners/defendants wherein the petitioners have also
appeared and filed written statement and on contest the suit has been decided
by judgment dated 28.02.2022 and decree dated 10.03.2022 passed in Eviction
Suit No. 01/1988 by the learned Civil Judge, (Senior Division) No. III Palamau
at Daltonganj and further direction has been issued to pay the arrears of rent
from 20.06.1987 with interest at the rate of 6% per annum till payment and to
pay future monthly rent, cost of the suit and compensatory cost. He further
submits that the said judgment and decree has been challenged by the
petitioners/defendants in Civil Appeal No. 10 of 2022. He submits that during
pendency of the appeal Execution Case No. 15 of 2022 was instituted for
complying the execution of decree drawn up in Eviction Suit No. 01 of 1988. He
then submits that when the execution proceeded, the petitioners filed a
petition under Order 41 Rule 5(1) of the C.P.C. which has been rejected by the
learned court by the impugned order. He further submits that the petitioners
are residing in the premises in question and during pendency of the appeal the
execution will take place and which will prejudice to the petitioners. He
submits that the learned court has not passed order in spirit of Order 41, Rule
5(1) of C.P.C. He further submits that considering all these aspects of the
matter the Coordinate Bench of this Court by order dated 18.12.2023 has
stayed the further proceeding of Execution Case No. 15 of 2022. On these
grounds, he submits that impugned order may kindly be set aside
4. Mr. Himanshu Kr. Mehta, learned counsel for the opposite parties
vehemently opposes the prayer and submits that I.A. No. 12321 of 2024 has
been filed for fixing an early date of hearing and for vacating the stay granted
by this Court. He submits that at the time of granting stay notice has been
issued and the opposite parties were not present before this Court in view of
that interlocutory application has been filed. He submits that intention of the
petitioners/defendants is to prolong the litigation for indefinite period asking
for stay in the appeal whereas they have not mentioned anywhere in the stay
petition that they are ready to make the payment of decretal amount and the
stay may be granted which is in the light of Order 41 Rule 5 Sub-Rule 3 (C). He
submits that as a matter of fact suit property is abandoned and no family
members are residing there. He further submits that the suit is of the year,
1988 wherein due to filing of frivolous petition by the petitioner herein the
delay has taken place in disposal of the suit which has been decided in the
year, 2022. He further submits that the learned court has dealt with all these
aspects of the matter and has been pleased to reject the petition.
5. In view of above submissions of the learned counsel for the
parties, it is crystal clear that Eviction Suit No. 01 of 1988 was decreed in the
year, 2022. This Court by order dated 18.12.2023 stayed the proceeding in
execution case and till date stay is operating in the said execution case and no
hectic step has been taken by the petitioners herein for early disposal of the
case inspite of stay in execution case. The learned appellate court has found
that at the time of filing of the appeal no petition under Order 41 Rule 5(1)
C.P.C. was filed and the said appeal was delayed by 21 days and only after
institution of execution case the said petition has been filed under Order 41
Rule 5(1) of C.P.C. Further for obtaining the stay the petitioners have not
shown the Bonafide by way of complying the provision made under Order 41
Rule 5 (1) Sub Rule 3 (C) C.P.C.
6. In the light of above, this Court comes to the conclusion that there
is no merit in this petition accordingly, this petition is dismissed. Pending I.A, if
any, stands dismissed.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/-
