Patna High Court
Kameshwar Yadav vs State Of Bihar on 5 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.84 of 2025
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1. Kameshwar Yadav, Son of Late Dhaneshwari Mandal, Resident of Village-
Manikpur, P.O- Manikpur, P.S. - Madhepura and District - Madhepura.
2. Surendra Prasad Yadav, Son of Late Dhaneshwari Mandal, Resident of
Village- Manikpur, P.O- Manikpur, P.S. - Madhepura and District -
Madhepura.
3. Rajendra Yadav, Son of Late Dhaneshwari Mandal, Resident of Village-
Manikpur, P.O- Manikpur, P.S. - Madhepura and District - Madhepura.
4. Ashok Yadav @ Paltu Yadav, Son of Late Dhaneshwari Mandal, Resident of
Village- Manikpur, P.O- Manikpur, P.S. - Madhepura and District -
Madhepura.
5. Kuleshwar Yadav, Son of Late Dhaneshwari Mandal, Resident of Village-
Manikpur, P.O- Manikpur, P.S. - Madhepura and District - Madhepura.
6. Deepak Kumar S/o Late Dinesh Yadav, Resident of Village- Manikpur, P.O-
Manikpur, P.S. - Madhepura and District - Madhepura.
7. Most. Shanti Devi, W/o Late Dinesh Yadav, Resident of Village- Manikpur,
P.O- Manikpur, P.S. - Madhepura and District - Madhepura.
... ... Petitioner/s
Versus
1. State of Bihar through Collector, Madhepura, Resident of Madhepura, P.O.,
P.S. and District - Madhepura.
2. District Deputy Registrar, Madhepura.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Parth Gaurav, Advocate
Mr. Akash Raj, Advocate
Mr.Arun Bharti, Advocate
Mr. Rahul Kumar, Advocate
For the Respondent/s : Mr. Rajesh Kumar, AC to GP-3
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 05-02-2025
The record has been taken up on mentioning being
made on behalf of the petitioners.
2. Heard learned counsel for the petitioners and
learned counsel for the State.
Patna High Court C.Misc. No.84 of 2025 dt.05-02-2025
2/4
3. The petitioners are aggrieved by the order dated
13.11.2024
passed by the learned Principal District Judge,
Madhepura in Title Appeal No. 20 of 2024 whereby and
whereunder the learned Principal District Judge stayed the
operation of the judgment dated 23.08.2024 and decree dated
31.08.2024 passed in Title Suit No. 134 of 2023 by learned Sub
Judge-1, Madhepura.
4. The learned counsel for the petitioners submits that
from the order-sheet of the learned first appellate court, it would
transpire that requisites for issuance of notice upon the
petitioners (respondents before the learned appellate court) have
been filed pursuant to the order dated 21.10.2024 and service
report was not available till 09.11.2024. However, learned first
appellate court, on an application filed on behalf of the State
without mentioning any provision, passed the impugned order
dated 13.11.2024 without any sanction of law. The learned
counsel further submits that there exists no provision of law
under which the appellate court could stay the operation of
judgment and decree of the trial court. Utmost an appellate court
could do is to stay the execution of decree. Hence, the said order
could not be allowed to stand at it is a completely illegal order.
Moreover, if there is no service of notice upon the respondents
Patna High Court C.Misc. No.84 of 2025 dt.05-02-2025
of title appeal, yet the learned first appellate court mentioned
that the respondents did not appear in spite of service of notice
through ordinary as well as registered post. The learned counsel
further submits that the impugned order be set aside and the
petitioners would have no objection if the title appeal is decided
within a fortnight.
5. The learned counsel for the State though opposes
the submission made on behalf of the petitioners, however,
learned counsel for the State also has no objection if the
impugned order is set aside and the learned first appellate court
is directed to dispose of the appeal within stipulated period.
6. I have given my thoughtful consideration to the
submission of the parties and have perused the record.
7. I find merit in the contention of the learned counsel
for the petitioners that the impugned order has been passed
against the express provision of law. There is nothing in the
Code of Civil Procedure which may permit the stay on the
operation of judgment and decree passed in a title suit by the
appellate court, though execution of such decree may be stayed
by the appellate court under Order 41 Rule 1 of the Code of
Civil Procedure. Then, the learned first appellate court justified
the passing of the order in absence of respondents on the ground
Patna High Court C.Misc. No.84 of 2025 dt.05-02-2025
that the respondents chose not to appear despite service of
notice and this does not appear to be correct.
8. In the light of discussion made so far, I am of the
considered opinion that the learned first appellate court
exceeded its jurisdiction and passed an erroneous order which
could not be sustained. Hence, the impugned order dated
13.11.2024 passed in Title Appeal No. 20/2024 by the learned
Principal District Judge, Madhepura is set aside.
9. As a result, the instant petition stands allowed.
10. Since both parties are agreeable to early disposal
of the appeal, in the light of submission of both the parties, the
learned first appellate court is directed to dispose of Title Appeal
No. 20 of 2024 pending before it at the earliest and preferably
within a period of three months from the date of
receipt/production of a copy of this order.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 05.02.2025
Transmission Date NA
