Patna High Court
Junad Eqbal Khan @ Junaid Ekbal Khan vs Sohail Khan on 6 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1257 of 2023
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Junad Eqbal Khan @ Junaid Ekbal Khan son of Late Mohammad Ayub Khan
@ Ayub Khan, resident of village -Baradih, P.S.- Agrer, District-Rohtas, At
present resident of J-3/18 Gali No.7 second floor Kishan Kunj, P.S - Laxmi
Nagar, East Delhi.
... ... Petitioner/s
Versus
1. Sohail Khan Son of Late Jalil Akhtar resident of Mohalla Bhagh Bhail Khan
Ward no.- 07 P.S.- Sasaram Town, District- Rohtas.
2. Shamsher Alam, Son of Late Jalil Akhtar resident of Mohalla Bhagh Bhail
Khan Ward no.- 07 P.S.- Sasaram Town, District- Rohtas.
3. Jamshed Alam, Son of Late Jalil Akhtar resident of Mohalla Bhagh Bhail
Khan Ward no.- 07 P.S.- Sasaram Town, District- Rohtas.
4. Sarwar Alam, Son of Late Jalil Akhtar resident of Mohalla Bhagh Bhail
Khan Ward no.- 07 P.S.- Sasaram Town, District- Rohtas.
5. Akhtar Alam, Son of Late Jalil Akhtar resident of Mohalla Bhagh Bhail
Khan Ward no.- 07 P.S.- Sasaram Town, District- Rohtas.
6. Kausari Begum, Daughter of Late Jalil Akhtar resident of Mohalla Bhagh
Bhail Khan Ward no.- 07 P.S.- Sasaram Town, District- Rohtas.
7. Khurshida Khatoon, Daughter of Late Jalil Akhtar resident of Mohalla
Bhagh Bhail Khan Ward no.- 07 P.S.- Sasaram Town, District- Rohtas.
9. Mansoor Alam Khan, Son of Late Mohammad Ayub Khan, @ Ayub Khan,
resident of village- Baradih, P.S.- Agrer, District- Rohtas.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Siddharth Harsh, Adv.
For the Respondent/s : None
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 06-02-2025
Present learned counsel for the petitioner. However,
there is no representation on behalf of the respondents, although
the respondents appeared through Vakalatnama and attended the
proceedings on previous dates.
02. The instant petition has been filed on behalf of the
Patna High Court C.Misc. No.1257 of 2023 dt.06-02-2025
2/7
petitioner for setting aside the order dated 19.09.2023 passed by
the learned Munsif-I, Sasaram, Rohtas in Execution Case No. 05
of 2005 whereby and whereunder the learned executing court
refused to proceed with the execution case and recorded its
opinion that stay granted by the High Court in Second Appeal
No. 315 of 2008 was still continuing and directed the office to
seek guidelines from this Court over the continuation of stay.
03. Learned counsel for the petitioner submits that
father of the petitioner filed Eviction Suit No. 03 of 1997
against the respondents-1st set. The suit was decided in favour
of the plaintiff in terms of judgment and decree dated
14.12.2001
and 22.12.2001, respectively. The respondents-1st
set filed Title Appeal No. 06 of 2002 against the aforesaid
judgment and decree of the learned trial court but the title
appeal was dismissed and findings of the learned trial court was
upheld by the learned Additional District Judge, Fast Track
Court No. 5, Rohtas at Sasaram vide order dated 18.08.2008
passed in Title Appeal No. 06 of 2002. Thereafter, the petitioner
and respondents-2nd set filed Execution Case No. 05 of 2005
before the learned Munsif-I, Sasaram, Rohtas. In the meantime,
respondents-1st set filed second appeal against the judgment and
decree of the learned first appellate court vide Second Appeal
Patna High Court C.Misc. No.1257 of 2023 dt.06-02-2025
No. 315 of 2008. Respondents -1st set also filed an interlocutory
application bearing I.A. No. 6155 of 2008 for staying the further
proceeding in the execution case. The learned Single Judge, vide
order dated 27.11.2008 passed in Second Appeal No. 315 of
2008, directed that I.A. No. 6155 of 2008 would be considered
at the time of hearing of second appeal under Order-41 Rule 11
of the Code of Civil Procedure. Till then, further proceedings of
Execution Case No. 05 of 2005 pending before the learned
Munsif-I, Sasaram had been stayed. Learned counsel further
submits that thereafter vide order dated 20.01.2009, the learned
Single Judge admitted the second appeal for hearing and framed
substantial questions of law. The matter was also ordered to be
listed for final hearing on 09.02.2009 within top five cases.
Learned counsel further submits that from these two orders, it is
apparent that the stay has been granted in this case till the
admission of the second appeal under Order 41 Rule 11 of the
Code of Civil Procedure and the petitioner after waiting for
quite long time for disposal of second appeal, filed a petition
dated 16.03.2021 in Execution Case No. 05 of 2005 to execute
the judgment and decree passed in his favour. A rejoinder to the
said application was filed by the respondents-1st set and the
learned executing court heard the matter and recorded its
Patna High Court C.Misc. No.1257 of 2023 dt.06-02-2025
opinion that stay granted by the High Court in second appeal
was still continuing and directed the office to seek guidelines
from this Court over the said stay.
04. Learned counsel for the petitioner reiterated that
from perusal of the orders dated 27.11.2008 and 20.01.2009,
both passed in Second Appeal No. 315 of 2008, it is clear that
the stay on further proceeding in execution case was only till
hearing of the matter under Order 41 Rule 11 of the Code of
Civil Procedure and thereafter, it was not extended. It was also
made clear that I.A. No. 6155 of 2008, which was filed for
staying the matter, was ordered to be considered at the time of
final hearing. Thereafter, there has been no orders on the said
interlocutory application. Learned counsel further submits that,
thus, the learned trial court erred in interpreting the said order of
this Court with regard to stay operating in the matter. Learned
counsel further submits that the petitioner is a landlord and has
been fighting eviction suit since 1997 and could not get back his
house. The petitioner has only this house in the town, which has
illegally been occupied by respondents-1st set and the petitioner
and his family are being forced to live in their village.
05. Perused the record.
06. The issue before this Court in the present case is
Patna High Court C.Misc. No.1257 of 2023 dt.06-02-2025
about the interpretation by the learned executing court regarding
orders passed by this Court in Second Appeal No. 315 of 2008
and whether such interpretation is correct or not?
07. Order dated 27.11.2008 passed in S.A. No. 315 of
2008 reads as under:
"Learned counsel for the appellants
submits that all the defects have been
removed.
Let the stay matter bearing I.A. No. 6155
of 2008 be considered at the time of hearing
of the second appeal under Order XLI Rule 11
of the Code of Civil Procedure. Till then, let
further proceeding of Execution Case No. 5 of
2005 pending before the learned Munsif-I,
Sasaram (Rohtas) remain stayed.
Since the second appeal has been filed
by the defendants against the judgments and
decree passed in a suit of eviction on the
ground of default in payment of rent as well
as personal requirement of the plaintiffs, let
this second appeal be placed for hearing
under Order XLI Rule 11 of the Code of Civil
Procedure on 15.12.2008.
Thereafter, on 20.01.2009 following order was passed
in S.A. No. 315 of 2008:
Heard learned counsel for the appellants
and learned counsel for respondent no.2.
This second appeal will be heard. Admit.
Following substantial questions of law
arise for consideration in the instant second
appeal:
(i) Whether a decree passed against a dead
person can be sustained in law?
Patna High Court C.Misc. No.1257 of 2023 dt.06-02-2025
(ii) Whether admission in the criminal case
can be a deciding factor in civil suit?
Learned counsel Mr. Md. Rashid Izhar,
who is appearing on behalf of respondent
no.2 submits that he will be filing power of
respondent no.1 within one week. He accepts
appeal notice on behalf of both the
respondents. In the said circumstances, no
appeal notice need be sent to the
respondents.
Call for the records from learned courts
below through special messenger, cost of
which must be deposited by the appellants by
Friday i.e. 23.01.2009 failing which this
second appeal shall stand dismissed without
further reference to a Bench.
Since this matter arises out of eviction
suit filed under the Bihar Building (Lease,
Rent & Eviction) Control Act, 1982, let it be
placed for final hearing on 09th February,
2009 within top five cases.
08. A conjoint reading of the aforesaid orders, in my opinion,
makes it clear that there could be two possible interpretations,
firstly the stay has been operating till the second appeal was
admitted for hearing under Order 41 Rule 11 of the Code of
Civil Procedure as the said order mandates that stay sought in
I.A. No.6155 of 2008 against execution proceedings would be
considered at the time of hearing of the second appeal. In other
words, the stay was to continue till the second appeal was
admitted and, thereafter, there would be no stay. At the same
Patna High Court C.Misc. No.1257 of 2023 dt.06-02-2025
time order dated 27.11.2008 could also be interpreted to mean
that stay order would continue till the hearing of the I.A. No.
6155 of 2008.
09. Since the issue involved is with regard to
interpretation of the order of the learned Single Judge in Second
Appeal No. 315 of 2008, I think it would be just and proper if
the issue is placed before the roster Bench for consideration
which is in seisin the matter of Second Appeal No. 315 of 2008.
The petitioner is at liberty to raise the matter before the roster
Bench in appropriate proceeding.
10. With the aforesaid observation, the present
petition stands disposed of.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 12.02.2025
Transmission Date NA
