IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.14799 of 2010
1. Gudai Mahto @Gudari Mahto
2. Bhola Mahto
Both sons of Late Raghubir Mahto, R/o Village-Pachrukhi, P.S.-
Pachrukhi, District- Siwan.
... Defendants-Appellants-Petitioners.
Versus
1. The State Of Bihar through Collector, Siwan, District-Siwan.
2. Circle Officer, Pachrukhi Anchal, District-Siwan.
.....Defendants-Respondents-Respondents-1st Set.
3. Ashok Singh, S/o Late Sita Ram Singh.
4. Munna Singh, S/o Late Sita Ram Singh.
5. Mira Devi, D/o Late Sita Ram Singh.
6. Punam Devi, D/o Late Sita Ram Singh.
7. Pushpa Devi, D/o Late Sita Ram Singh.
8. Ram Bachan Singh, S/o Late Dharmdeo Singh.
All 3 to 8 are R/o village- Rasulpur, P.S.-Pachrukhi, District-Siwan.
.......... Plaintiffs-Respondents-Respondents- 2nd Set.
9. Bindeshwari Chaudhary, S/o Late Sri Bhawan Chaudhary.
10. Mahanth Chaudhary, S/o Late Sri Bhawan Chaudhary.
11. Bishwanath Chaudhary, S/o Late Sri Bhawan Chaudhary.
12. Lalita Devi, W/o Shiv Nath Chaudhary, D/o of Late Sri Bhawan
Chaudhary.
13. Radhika Devi, W/o Uma Shankar Chaudhary, D/o Late Sri Bhawan
Chaudhary.
14. Most. Phulwati Devi, W/o Late Tapeshwar Chaudhary.
15. Girija Devi, W/o Baida Chaudhary, D/o Late Tapeshwar Chaudhary.
All residents of village-Malloopur, P.S.-Pachrukhi, District-Siwan.
16. Shankar Nonia, S/o Late Mahaveer Nonia, R/o Village-Pachrukhi,
P.S.-Pachrukhi, District- Siwan.
17. Gauri Shankar Singh, S/o Brahmdeo Singh, R/o Village- Chaumukha,
P.S.-Pachrukhi, District- Siwan.
18. Parash Mishra, S/o Late Thakur Mishra, R/o Village- Rasoolpur,
P.S.-Pachrukhi, District- Siwan.
19. Jang Bahadur Singh, S/o Late Raghunath Singh, R/o Village-Jassauli
Mansi Singh Ke Tola, P.S.-Pachrukhi, District- Siwan.
20. Chandrika Chaudhary
21. Bhim Bali Chaudhary.
22. Shyamdeo Chaudhary.
23. Swami Nath Chaudhary.
Respondents nos. 20 to 23 are sons of late Muni Chaudhary.
24. Basudeo Chaudhary, S/o Gudari Chaudhary.
25. Bachchu Chaudhary, S/o Mira Chaudhary.
26. Nathuni Chaudhary, S/o Shyamlal Chaudhary
27. Jagdish Chaudhary, S/o Nami Chaudhary
28. Imaman Chaudhary, S/o Rampati Chaudhary
All resident of Village-Narayanpur, P.S.-Pachrukhi, District- Siwan.
29. Balister Chaudhary, S/o Late Bindeshwari Chaudhary.
30. Ram Babu Chaudhary, S/o Sri Bishwanath Chaudhary, Both R/o of
village-Mallupur, P.S.-Pachrukhi, District- Siwan.
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31. Prabhu Nath Singh, S/o Ramdhari Singh, R/o Village- Pachrukhi,
P.S.-Pachrukhi, District- Siwan.
.... Defendants-Respondents-Respondents- 3rd Set.
For the petitioners : Mr. Vinay Kirti singh, Advocate.
For Respondent nos. 3: Mr. Kaushal Kishore Mishra, Advocate.
For Respondent nos. 4-8: Mr. Ranjeet Kumar, Advocate.
For the State : Mr. Ambrish Kumar Jha,
AC to Government Advocate-4.
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3. 10.11.2010 1. Heard learned counsel for the petitioners, learned
counsel for the State of Bihar and its authorities (Respondent nos. 1
& 2), learned counsel for respondent no. 3 and learned counsel for
respondent nos. 4 to 8 (plaintiffs).
2. The petitioners were defendants -appellants in the
court below whereas respondent nos. 3 to 8 were plaintiffs-
respondents and hence, they are necessary parties for disposal of
this writ petition.
3. This writ petition has been filed by the defendants-
appellants-petitioners challenging order dated 12.08.2010 by which
the Additional District Judge, Siwan rejected the application filed
by them under the provision of Order 41 Rule 5 of the Code of
Civil Procedure for stay of further proceeding of Execution Case
No. 1 of 2004 pending in the court of Sub-ordinate Judge-V, Siwan
till the disposal of Title Appeal No. 50 of 2003, which was pending
before the aforesaid Additional District Judge, Siwan.
4. Learned counsel for the petitioners submits that
the petitioners are residing in the suit premises along with their
families and after the decree dated 23.09.2003 passed in Title Suit
No. 148 of 1984 he filed Title Appeal No. 50 of 2003 which is
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pending for hearing since long but is not being decided by the
lower appellate court. He further argues that in the mean time
Execution Case No. 1 of 2004 had been filed by the plaintiffs-
decree holders before the Sub-ordinate Judge-V, Siwan. He further
states that in the said circumstances, it was necessary for the lower
appellate court to stay the proceeding of execution case.
5. On the other hand, learned counsel for respondent
no. 3 and learned counsel for respondent nos. 4 to 8-2nd Set
vehemently oppose the contentions of learned counsel for the
petitioners and submit that petitioners’ claim was absolutely
frivolous and misconceived due to which the suit had been decided
against them and the title appeal also has got no merit at all, hence,
the court below rightly rejected the stay petition of the appellants-
petitioners.
6. Considering the entire facts and circumstances of
this case, this court finds that admittedly, the appellants-petitioners
are residing in the suit premises and for its delivery of possession
against the petitioners, execution case has been lodged. This court
also finds that title appeal is pending since 2003 although as
claimed by the parties, it is ready for final hearing.
7. In the said circumstances, the impugned order is
set aside and this writ petition is disposed of with a direction to the
1st Additional District Judge, Siwan to expedite the hearing of T.A.
No. 50 of 2003 so that it may be decided without any further delay
preferably within a period of two months from the date of
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receipt/production of a copy of this order. Till the final disposal of
the aforesaid title appeal, further proceeding of Execution Case
No. 1 of 2004 pending before the Subordinate Judge-V, Siwan
shall remain stayed.
8. It may be noted that all the parties concerned have
given their undertaking before this court that they will co-operate
in the early disposal of the title appeal by day-to-day hearing and if
any, undue adjournment is sought by any of them, then court of
appeal below shall rejected the same and proceed with the hearing
of the appeal.
(S.N.Hussain,J.)
Sujit