IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.7 of 2011
Sri Ram Rai & Ors.
Versus
Mostt. Sushila Rai & Ors.
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8. 18.11.2011 Heard the learned counsel for the appellants
and the learned counsel appearing on behalf of the
respondent Nos. 1 to 7 on the limitation application i.e.
I.A. No. 553 of 2011.
This limitation application has been filed on
behalf of the appellants praying for condoning the delay
of about 1 year in filing this appeal against the final
decree.
The learned counsel for the appellants
submitted the appellants had no knowledge that against
the final decree also appeal is required to be filed. The
first appeal against the preliminary decree had already
been filed by the appellants which is pending so the
appellants were under impression that in the said
appeal everything will be heard. When they contacted
their learned counsel in the High Court in first appeal
arising out of preliminary decree it was detected that
the first appeal against the final decree is also required
to be filed and, thereafter obtaining the certified copy of
the decree this present appeal has been filed.
On the other hand, the learned counsel for
the respondents submitted that there is no sound
reason for explaining the delay.
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Considering the facts and circumstances of
this case and the explanation given in the limitation
application no doubt it appears some laches but in my
opinion, the appellants were entitled for the
condonation of delay subject to payment of cost.
Accordingly, the delay in filing the appeal is condoned
subject to payment of cost of Rs.2000/- to be paid by
the appellants to the leaned counsel Mr. Ashok Kumar
appearing on behalf of the respondent Nos. 1 to 7
within one month from today, failing which this order
condoning the delay shall stand automatically recalled.
Thus, the interlocutory application No. 553 of 2011
stands allowed.
Heard the learned counsel for the appellants
and the learned counsel for the respondents on the
interlocutory application No. 1615 of 2011.
This is a stay application under Order 41 Rule
5 of the Code of Civil Procedure filed on behalf of the
appellants praying therein to stay further proceeding in
Execution Case No. 7 of 2009 pending in the court of
Sub Judge – 2, Buxar.
The fact is that the plaintiff respondent filed
partition suit being Partition Suit No. 227 of 2001
claiming 1/6th share in the suit property. So far
schedule ‘Kha’ to ‘Anga’ are concerned, alternatively
prayed for 1/3rd share if the oral partition of 1953 and
1964 is found valid in the property of Raj Nandan Rai
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and 1/6th share in the joint property in U.P., Bihar and
West Bengal. The suit was decree declaring 1/6th share
in the suit property. Against the said preliminary decree
the appellants have filed First Appeal No. 149 of 2008
which is pending before this Court. Thereafter final
decree proceeded and by the impugned judgment and
decree dated 16.12.2009 the partition suit has been
disposed of. Against the final decree the present first
appeal has been filed by the appellants. The plaintiffs
filed the aforesaid execution case for obtaining delivery
possession of the property which was allotted in his
Takhta in the final decree.
The learned counsel for the appellants
submitted that Order 9 Rule 13 application has been
filed by some of defendants against whom the
preliminary decree was filed ex party. Further the court
below has decreed the suit without there being any
reliable evidence and therefore, the preliminary
judgment and decree is perverse and in such
circumstances, if any, stay is granted the appellants
shall suffer serious loss and irreparable injury.
On the contrary, the learned counsel
appearing on behalf of the respondents submitted that
the residential house where the appellants are residing
has not been allotted in the Takhta of the respondents
and further by the execution case the respondents are
not going to dispossess the appellants from the
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residential house where they are residing. So far other
properties are concerned those are either agricultural
land or Parti land.
In view of the above facts and
circumstantiates of the case, so far delivery of
possession, if any, of the residential house where the
appellants are residing is stayed and the residential
building which are in possession of the appellants it is
stated that the appellants’ residential house is separate
and the respondents’ residential house is separate.
Except the above stay of delivery of possession of
residential houses, the execution case shall proceed for
execution of delivery of possession of the agricultural
land or Parti land.
With this observation the stay application is
party allowed. The delivery of possession in execution
case so far it relates to residential house is only stayed.
S.S. (Mungeshwar Sahoo, J.)