Patna High Court
Md. Ziaul Haque @ Md. Jiyaul vs Md. Mojibur Rahman on 25 March, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.142 of 2023
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1.1. Mohammad Shamshad, son of Late Mohammad Jiyaul @ Md. Ziaul Haque
@ Md. Jiyaul, resident of Bishanpur Bazar, P.S. Kumarkhand, District-
Madhepura.
1.2. Md. Manjur, Son of late Md. Abadul Rajjak, R/o Village- Bishanpur Bazar,
Ward no. 01, P.S. Kumarkhand, District-Madhepura.
1.3. Md. Ejaj, Son of late Md. Abadul Rajjak, R/o Village- Bishanpur Bazar,
Ward no. 01, P.S. Kumarkhand, District-Madhepura.
1.4. Md. Naim, Son of late Md. Abadul Rajjak, R/o Village- Bishanpur Bazar,
Ward no. 01, P.S. Kumarkhand, District-Madhepura.
... ... Petitioner/s
Versus
1. Md. Mojibur Rahman Son of Late Abdul Jalil, Resident of village -
Bishanpur Sundar, Police Station - Kumarkhand, District - Madhepura.
2. Md. Azim Son of Late Abdul Jalil, Resident of village - Bishanpur Sundar,
Police Station - Kumarkhand, District - Madhepura.
3. Md. Najruddin, Son of Late Abdul Jalil, Resident of village - Bishanpur
Sundar, Police Station - Kumarkhand, District - Madhepura.
4. Md. Riaz, Son of Late Abdul Jalil, Resident of village - Bishanpur Sundar,
Police Station - Kumarkhand, District - Madhepura.
5. Md. Faiazul, Son of Late Abdul Jalil, Resident of village - Bishanpur
Sundar, Police Station - Kumarkhand, District - Madhepura.
6. Md. Siraj, Son of Late Abdul Jalil, Resident of village - Bishanpur Sundar,
Police Station - Kumarkhand, District - Madhepura.
7. Shakila Khatoon, wife of Md. Nurul, Resident of village - Pokharia Tola,
Police Station - Kumarkhand, District - Madhepura.
8. Mobila Khatoon, Wife of Md. Faruque, resident of village - Bishanpur
Sundar, Police Station - Kumarkhand, District - Madhepura.
9. Md. Usman, Son of Late Sk. Azhar Hussain @ Chhotu, resident of village -
Bishanpur Sundar, Police Station - Kumarkhand, District - Madhepura.
10. Md. Abu Talib, son of Late Md. Manjoor and Late Raisa Khatoon, Resident
of village - Bishanpur Sundar, Police Station - Kumarkhand, District -
Madhepura.
11. Rajeena Khatoon, wife of Md. Usman, daughter of Manjoor and Late Raisa
Khatoon, Resident of village - Bishanpur Sundar, Police Station -
Kumarkhand, District - Madhepura.
12. Mahmuda Khatoon, wife of Md. Najo, daughter of Late Manjoor and Late
Raisa Khatoon, Resident of village and Post Office - Raghunathpur, Police
Station - Jadia, District - Supaul.
... ... Respondent/s
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Appearance :
Patna High Court C.Misc. No.142 of 2023 dt.25-03-2025
2/3
For the Petitioner/s : Mr.Rupesh Kumar, Advocate
For the Respondent/s : Mr. Yogendra Kumar, Advocate
Mr.Ram Naresh Ray, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 25-03-2025
Heard learned counsels for the parties.
2. The petitioners are aggrieved by the order dated
25.07.2022
passed by the learned Additional District Judge-VII,
Madhepura in Title Appeal No. 03 of 2019 whereby and
whereunder the application dated 02.03.2020 filed on behalf of
the appellants under Order 41 Rule 5 read with Section 151 of
the Code of Civil Procedure (hereinafter referred to as the Code)
to stay the proceeding of Execution Case No.03/2019 filed
under heading FD No. 03/2019 in pursuance of the judgment
and decree passed in Title Suit No. 73/2005 by the learned Civil
Judge (Senior Division)-1, Madhepura, has been dismissed.
3. Perusal of impugned order makes it abundantly
clear that after the preliminary decree, preparation of final
decree is in progress. The appellants have challenged the
judgment dated 30.11.2018 and preliminary decree dated
17.12.2018 in Title Appeal No.03/2019. The learned first
appellate court has observed that provision of Order 41 Rule 5
of the Code permits stay of execution and not operation of the
judgment. The learned appellate court has also observed that
Patna High Court C.Misc. No.142 of 2023 dt.25-03-2025
there is no executing proceeding taking place since process of
preparation of final decree is in progress. In this background,
challenge to the order of the learned first appellate court is only
on misconceived grounds.
4. Therefore, I do not find the impugned order suffers
from any infirmity as the same has been passed after due
consideration of facts and law and, therefore, the same is
affirmed.
5. Accordingly, the instant petition is dismissed.
6. However, the petitioners are at liberty to take
recourse of appropriate proceeding against execution
proceeding, if such execution proceeding is initiated after
preparation of final decree and the petitioners are aggrieved by
the same.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 26.03.2025
Transmission Date NA
