Mukti Nath Prasad vs Sushma Devi And Ors

The petitioner is decree holder in Execution Case No. 7 of 2010 pending before Munsif-I, Chhapra. He has filed this application for setting aside the

order dated 6th June 2013 passed by learned court below whereby and whereunder the proceeding of execution was stayed till the disposal of

Miscellaneous Case No. 9 of 2011.

Heard learned counsels for the petitioner and the respondents.

The petitioner filed Execution Case No. 7 of 2010 for getting delivery of possession over the suit property on the basis of eviction decree passed in

his favour in Eviction Suit No. 207 of 1992. The respondents filed a Miscellaneous Case No. 9 of 2011 for setting the said decree under the provision

of Order IX Rule 13 of Code of Civil Procedure and the court below stayed the further proceeding of execution case till the disposal of case filed

under Order IX Rule 13 CPC.

The learned counsel for the petitioner submits that the petitioner had filed Eviction Suit No. 207 of 1992 against the nine defendants. The

respondents 1st set are heirs of Rabindra Singh who was defendant no. 5. In the said eviction suit, Rabindra Singh neither appeared before the court

below nor contested the case and so the suit was decreed ex parte against him. The said Rabindra Singh died during pendency of the suit and so in

view of provision of Order 22 Rule 4 (iv) of Code of Civil Procedure, the petitioner did not implead the heirs of Rabindra Singh as party to the

execution case. The petitioner filed the execution case against the remaining defendants who had contested the case. The heirs of defendant no. 5 had

not appeared before the court below. The court below had no jurisdiction to stay the execution case till the disposal of miscellaneous case. The heirs

of Rabindra Singh were neither party in execution case nor they have any locus standi to oppose the execution case. The contesting defendant has

already filed an appeal before the District Judge which is pending for disposal and so the impugned order staying further proceeding till the disposal of

miscellaneous case, is not sustainable and is fit to be set aside.

The learned counsel for the respondents on the other hand submits that the petitioner is necessary party to the execution case and his prayer has

rightly been allowed. The court below while staying the execution case, has rightly observed that if the execution case is not stayed, the very purpose

of filing of miscellaneous case would be frustrated and so the impugned order does not require any interference.

On perusal of all documents on record, I find that the respondents 1st set are heirs of defendant no. 5 against whom the decree has been passed.

The said Rabindra Singh neither appeared in the said suit nor filed any written statement and the case was decreed against him ex parte. However the

defendants, who contested the case, filed an appeal before the District Judge. None of the contesting defendant has/had prayed for stay. The

respondents 1st set, who are heirs of defendant no. 5, although have filed the Miscellaneous Case No. 9 of 2011 but they have not prayed for stay in

the said miscellaneous case. The miscellaneous case is pending since last six years but not a single witness has been examined on behalf of the

respondents 1st set i.e. applicant of Miscellaneous Case No. 9 of 2011. The execution case cannot be stayed for indefinite period as per wish of the

objector, who is not party of the execution case. The court below has thus committed error in staying the execution case till the disposal of

miscellaneous case which was pending in another court.

In view of above facts, the impugned order staying the execution case is set aside and this application is allowed.