Sitaram Chauhan vs Moteshwari Devi And Others

Gautam Kumar Choudhary, J

Instant petition has been filed for quashing the order dated 23.04.2022 passed by Additional Judicial Commissioner-XXI, Ranchi in Misc. Civil Application No.18 of 2022 whereby and whereunder the petition filed under Order XLI Rule 5 of the C.P.C. for stay of Execution Case No.288 of 2017, was rejected.

Petitioner is plaintiff under Partition Suit No.42 of 2010 filed for preliminary decree declaring 1/7th share in the suit property. In this suit, mother and brothers have been impleaded as defendants.

Defendant No.1, who happens to be the mother, executed registered sale deed with respect to the suit property in favour of defendant No.2 during the pendency of the suit claiming it to be her own Stridhan.

After the execution of sale deed, defendant no.2 preferred a counter claim in the partition suit.

The suit of the plaintiff was dismissed and the counter claim was allowed against which the petitioner/plaintiff has preferred Civil Appeal No.56 of 2018 and defendant no.2 moved the Executing Court for execution of counter claim which was decreed in the partition suit.

It is submitted by the learned counsel that respondent no.2 also moved this Court in C.M.P. No.174 of 2021 with a prayer for expeditious disposal of Execution Case No.288 of 2017 by suppressing the pendency of Civil Appeal and obtained an order from the Hon’ble Court for expeditious disposal of execution proceeding vide order dated 01.10.2021.

This petitioner preferred C.M.P. No.45 of 2022 for expeditious disposal of Civil Appeal No.56 of 2018 and no order in this regard was passed by the Court and liberty was granted to pursue under Order XLI Rule 5 of C.P.C., which has been rejected, hence the instant petition.

It is submitted by learned counsel that it is settled principle of law in view of judgment of Hon’ble Supreme Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 in which Supreme Court has held that sufficient cause in favour of the appellant, the execution proceeding will be stayed under Order 41 Rule 5 C.P.C. Dispossession during the pendency of an appeal of a party in possession, is generally considered to be “substantial loss” to the party applying for stay of execution within the meaning of Clause (a) of sub-rule (3) of Rule 5 of Order XLI of the C.P.C.

It is submitted that dispossession during the pendency of appeal will cause irreparable injury and substantial loss to the petitioner. This appeal is still pending before the learned Court below.

It is submitted by the learned counsel on behalf of opposite parties that the petitioner will not suffer any substantial loss by execution of the decree passed in favour of opposite party no.2 on his counter claim in view of the fact that he has got his share in partition of ancestral property located at village Chakki (U.P.) and also the share in the self-acquired property by his father. This is precisely the reason for which the petition for stay has been rejected by the learned Court below. Further there is specific direction by this Court passed in C.M.P. No.174 of 2021 to expedite the hearing of Execution Case No.288 of 2017 and in view of specific direction, the learned Court is proceeding for execution.

Having considered the rival submissions on behalf of both sides, the Appellate Court is directed to dispose of the Civil Appeal No.56 of 2018 preferably within a month of this order.

With this observation, this Civil Miscellaneous Petition stands disposed of. I.A. No.8702 of 2022 is also disposed of.