IN THE HIGH COURT OF JUDICATURE AT PATNA
SA No.53 of 2004
LALAN LAL @ LALAN PRASAD LAL &
Versus
DEVENDRA LAL & ORS
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20/ 14.12.2010 I.A. No. 3675 of 2010
Heard the parties.
The present interlocutory application has been
filed by the appellants-defendants under Order 41 Rule 5
read with section 151 of the Code of Civil Procedure for
staying the further proceeding in Execution Case No. 01 of
2009 pending in the Court of learned Munsif, Ara. By an
order dated 30.08.2010 an order of ad interim stay was
passed by a Bench of this Court and matter was adjourned at
the instance of learned counsel appearing on behalf of the
respondents/plaintiffs, who has now filed an affidavit in
opposition of the present interlocutory application. Hence,
this matter has come up for final disposal.
Learned counsel for the appellants submits that
plaintiffs respondents herein brought Title Suit No. 63 of
1981 for declaration of his right and title with respect to plot
nos. 888 & 889 and for declaring the defendants as
encroachers over the same. The aforesaid title suit was
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heard and finally decided by judgment and decree dated 4th
October, 2002 by learned 3rd Munsif, Ara. By referring to
paragraph 22 of the trial court judgment, learned counsel for
the appellants submits that the learned trial court has
declared the right and title of the defendants over the suit
property and has further held that they are not the
encroachers over the same. Finally suit was dismissed with
cost by the aforesaid judgment and decree referred to above.
Being aggrieved by the aforesaid judgment and decree
passed by learned trial court, the plaintiffs filed Title Appeal
No. 52 of 2002which was finally allowed by judgment and
decree dated 22n d
December 2003 passed by learned 2nd
Additional District and Sessions Judge, Ara. The learned
lower appellate court has decreed the suit of the plaintiffs
respondents and has reversed the judgment of the learned
trial court and further the defendants have been held to be
encroachers over the lands in question. Being aggrieved by
the aforesaid judgment and decree passed by learned lower
appellate court, the present second appeal has been
preferred, which has been admitted by a Bench of this Court
by order dated 05.02.2009. Substantial questions of law
have been framed and lower court records have been called
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for. In the meantime, the plaintiffs decree holder levied the
aforesaid Execution Case No. 01 of 2009. Admittedly, the
present second appeal is against the judgment of reversal.
The trial court has decided the issues regarding title over the
suit land in favour of the defendants, whereas lower
appellate court has decided the issues of title in favour of the
plaintiffs. That being the position and in view of the fact, the
present second appeal has been admitted by a Bench of this
Court, it would not be appropriate to allow the execution
case to proceed at this stage. Further ad interim stay has
already been granted by an order dated 30.08.2010.
In the facts and circumstances a prima facie case
is in favour of the defendants/appellants. Accordingly, the
present interlocutory application is allowed. The further
proceeding in Execution Case No. 01 of 2009 is hereby
stayed till disposal of the present second appeal. In view of
the controversy at hands, it would be appropriate that the
second appeal be listed for final hearing at an early date.
Office may verify from the records as to whether the notices
have been validly served on all the respondents or not. If the
notices have been validly served upon all the respondents,
or they have already entered appearance by filing a
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Vakalatnama and the lower court records have been
received, then in that case, this matter may be listed for final
hearing in the month of February, 2011 before an
appropriate Bench.
( Birendra Prasad Verma, J )
Anjani/