Sanjay Kumar Singh vs Smt. Savitri Devi

Mr. Aparesh Kumar Singh, J. - Heard learned counsel for the petitioner and the Respondent.

The matter was taken up earlier on the first occasion on 5.10.2016 when the following order was passed :-

"Learned counsel for the petitioner submits that without addressing itself to the petition under Order 21, Rule 26 CPC filed by the petitioner/judgment debtor (Annexure-2) as would be evident from the order dated 21st September 2016 and 27th September 2016, the learned Executing Court has directed execution of delivery of possession on 5th October, 2016 i.e. today. It is submitted that the earlier order dated 13th July 2012 directing delivery of possession could not be acted upon. Petitioner''s appeal against the judgment and decree dated 29th June, 2011 passed by learned Sub-Judge, Bokaro being Title Appeal No.13/2007 was unfortunately dismissed for default on account of illness of the counsel for the appellant-petitioner who also subsequently died. Misc. Case No.01/2014 seeking restoration thereof was also dismissed for default due to inadvertence and oversight of the newly engaged lawyer. Petitioner would be ousted from the suit premises without any decision by the executing court on his petition under Order 21, Rule 26 filed on 15th September, 2016, if no stay is granted.

Counsel for the petitioner submits that due to the exigency caused in view of the order dated 27th September 2016, other material documents could not be brought on record. He, however, undertakes to bring it on record by way of a supplementary affidavit to be filed within two weeks.

List the case accordingly on 17th October, 2016 before the appropriate Bench.

In the meantime, status-quo as on today in respect of the suit property under execution in Execution Case No.01/2012 pending in the court of learned Civil Judge (Senior Division)-II, Bokaro, so far as it concerns the petitioner, shall be maintained.

Issue notice on the sole respondent under registered cover as well as through ordinary process for which requisites be filed by tomorrow, failing which this petition, as against the sole respondent, shall stand rejected without further reference to a Bench.

Petitioner may also effect personal service of notice on the sole respondent within a period of two weeks and file a supplementary affidavit on 17th October 2016".

After service of notice the sole Respondent has appeared and filed counter-affidavit.

Learned counsel for the petitioner submits that Civil Miscellaneous Petition No. 2 of 2016 has been filed before the Court of Learned District Judge 2nd, Bokaro seeking restoration of Misc. Case No. 01/2014, which in itself was earlier dismissed for default. The Misc. Case No. 01/2014 was preferred for restoration of Title Appeal No. 13/2007, which again was dismissed for default. It is submitted that petitioner would make all due diligence on his part to prosecute the instant restoration petition pending before the learned Court of District Judge 2nd, Bokaro. The Executing Court has posted the Execution Case No. 01/2012 on 30.1.2017. It is submitted that petitioner may be granted interim protection till that date to enable it to pursue the restoration matter and also obtain interim protection in the meantime. It is submitted that since the delivery of possession have been stayed by this Court vide order dated 5.10.2016, Respondent is unlikely to be prejudiced in the mean time till the next date i.e. 30.1.2017 when the Execution Case No. 01/2012 is posted.

Learned counsel for the sole Respondent has taken pains to take this Court through the chronology of events and explained the lack of diligence on the part of the petitioner in prosecuting his case in learned Court below. He has also defended the order passed by the learned Executing Court of Civil Judge(Senior Division)-II, Bokaro. It is submitted that the Respondent is suffering on account of procrastinating attitude of the petitioner in delaying the execution of the case on one pretext or the other. Therefore, no interference may be accorded in the impugned order.

Learned counsel for the Respondent however, fairly submits that the next date before the Executing Court being 30.1.2017, petitioner may avail of any remedy to seek restoration of the Title Appeal before the Court concerned in the meantime.

Considering the submission of the parties and the relevant facts pleaded, this Court taking note of the attendant facts and circumstances, is not satisfied that any ground for interference is made out in the impugned order passed by the Executing Court. However, since the petitioner is pursuing his restoration application before the Court of Learned District Judge 2nd, Bokaro and that the next date in execution case is 30.1.2017, it would be proper that within this period petitioner may be allowed to pursue the matter of restoration and seek interim protection in Title Appeal No. 13 of 2007. Learned Executing Court would not take coercive steps against the petitioner in the meantime till 30.1.2017. However, interim protection, so granted shall expire on 30.1.2017 and the Executing Court would thereafter be at liberty to proceed in the matter in accordance with law subject to any order passed by the Appellate Court.

The writ petition is disposed of with the aforesaid observations.