Nemi Chand And Others vs Dinesh And Others
2021 Latest Caselaw 7687 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 S.B. Civil First Appeal No. 209/2016

Nemi Chand and Others
                                                                   ----Appellants
                                    Versus
Dinesh and Others
                                                                 ----Respondents

For Appellant(s) : Mr. Manoj Bhardwaj, Advocate For Respondent(s) : Mr. Ashok Sharma, Advocate

HON'BLE MR. JUSTICE PRAKASH GUPTA

Order

16/12/2021

Matter comes up on an application under Section 151

CPC for passing appropriate order on the stay application.

Learned counsel for the appellants-defendants (for

short, 'the defendants') submits that the defendants filed the

aforesaid appeal challenging the judgment and decree dated

29.2.2016 passed by the trial court. Alongwith the appeal, stay

application was also filed. The appeal and the stay application are

pending since the year 2016, but till date no effective order has

been passed. Now the execution proceedings have been

commenced, therefore, appropriate order is required to be passed

on the stay application.

He further submits that the defendants were not the

party in the agreement dated 10.7.1986, therefore no decree for

specific performance of the agreement could have been passed

against them and for this reason, the same is not executable

against them. The respondents-plaintiffs (for short, 'the plaintiffs')

wrongly claimed the decree of specific performance against them.

(2 of 4) [CFA-209/2016]

He further submits that the defendants are in possession of the

suit property, hence operation and / execution of the impugned

judgment and decree is required to be stayed.

On the other hand, learned counsel for the plaintiffs

submits that on 11.5.2016 the present appeal was filed by the

defendants and notices were issued to the plaintiffs, whereas the

Execution No. 19/2016 for execution of the impugned judgment

and decree dated 29.2.2016 was filed on 26.4.2016 i.e. prior to

filing the appeal. He further submits that despite receipt of notice

of execution case, the judgment debtors i.e. defendants no. 1 to 6

did not appear before the Executing Court and therefore, the

decree for specific performance was executed against the

defendant nos. 1 to 6, who had executed the agreement to sell in

favour of the plaintiffs and on full satisfaction of the decree for

specific performance, execution petition was disposed of by the

executing court.

It is also submitted that the plaintiffs are in possession

of the suit property and they were using and occupying the same,

but since the defendant nos. 7 to 9 created hindrance in use and

occupation thereof and attacked the plaintiffs on 14.12.2019 at

the shop, FIR No. 666/2019 was lodged against the defendant(s)

at Police Station, Lalsot, Distt. Dausa and after investigation, the

police filed the charge sheet against them for the offences under

Section 323, 325, 336, 504, 147, 148, 149 IPC. With malafide

intention, on 21.12.2019 the defendant(s) filed a complaint in the

Court of ACJM No.1, Lalsot, which was sent to Police for

investigation under Section 156 (3) CrPC and after investigation

on 25.1.2020, the police filed the negative final report. The

defendant nos. 7 to 9 put a lock over the suit property and did not

(3 of 4) [CFA-209/2016]

remove the same. On this count, the plaintiffs again filed an

execution petition for getting the lock removed with the police

help.

He further submits that since the defendants no. 7 to 9

(appellants herein) did not file any written statement before the

trial Court and neither there was any averment that they were in

possession of the suit property nor there was any evidence to this

effect, therefore, at this stage, they cannot say that they are in

possession of the suit property. He further submits that in view of

the above and the fact that the decree for specific performance

has already been executed, the stay application is liable to be

rejected.

Heard. Considered.

Taking into consideration the facts and circumstances of

the case and more particularly in view of the fact that the decree

for specific performance is not being executed against the

defendants no. 7 to 9 (appellants herein); and impugned decree

for specific performance has already been executed against

defendants no. 1 to 6; the defendants no. 7 to 9 did not file any

written statement before the trial Court and neither there was any

averment that they were in possession of the suit property nor

there was any evidence to this effect and for the first time, they

are claiming before this Court that they are in possession of the

suit property, whereas on the other hand, the plaintiffs are

claiming their possession over the suit property, which was duly

found proved by the trial court, the stay application and the

instant application for passing appropriate order on the stay

application are malafide, more particularly in view of the fact that

FIR No. 666/2019 was lodged at Police Station, Lalsot, Distt.

(4 of 4) [CFA-209/2016]

Dausa against the defendant(s) and after investigation, the police

filed the charge sheet for the offence under Sections 323, 325,

336, 504, 147, 148, 149 IPC and as a counter blast, the

defendant(s) filed a complaint in the Court of ACJM No.1, Lalsot,

which was sent to Police for investigation under Section 156 (3)

CrPC and after investigation, the police filed the negative final

report, both the applications are liable to be dismissed, which

stand dismissed with a cost of Rs. 50,000/-, to be paid to the

plaintiffs within four weeks from today.

(PRAKASH GUPTA),J

DK/46

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