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2003 DIGILAW 429 (PAT)

Devanand Singh v. Sarbanand Sinha

2003-04-16

S.K.KATRIAR

body2003
Judgment 1. Heard Mr. Mukteshwar Singh for the appellants, and Mr. Kamal Nayan Choubey for the respondents. The respondents have filed the present application for vacating the order dated 10.1.94 passed on this appeal, whereby the signing and sealing of the final decree under preparation has been stayed till the final hearing of this appeal. While pressing this application, learned counsel for the respondents submits that the said order was passed in the absence of the respondents who had till then not been noticed, nor had they entered appearance. He further submits that the present appeal is against the preliminary decree, and stay of sealing and signing of the final decree prevents a possible appeal which can be filed by the aggrieved party after the same is sealed and signed. He submits that after the final decree is prepared, sealed and signed the aggrieved party can prefer an appeal which can be heard with the present appeal and the parties will have the liberty to pray for appropriate interim orders when the both appeals are pending in this Court. He relies on the order dated 9.8.2000, passed by a Division Bench of this Court on LPA No. 922 of 1999 (Prabhu Narayan Pandey & Another V/s. Kalawati Devi & Ors.). 2. Learned counsel for the appellants has opposed this application, and submits that the respondents are engaged in the nefarious act of alienating portions of the suit property. 3. I have perused this application and considered the submissions of learned counsel for the parties. The appellants have not filed counter affidavit to the present application. Learned counsel for the respondent is right in his submission that the order dt. 10.1.1994 on the present appeal, which arises out of a preliminary decree, staying sealing and signing of the final decree prevents preparation of the final decree and filing of an appeal against the same is unduly delayed. We cannot lose sight of the fact as to the inordinate delay taking place in this Court in disposal of such appeals. Secondly, in the absence of such a stay order, the aggrieved party may file an appeal in this Court against the final decree which would be heard analogous with the present appeal, the subject matter of both being common and similar. Secondly, in the absence of such a stay order, the aggrieved party may file an appeal in this Court against the final decree which would be heard analogous with the present appeal, the subject matter of both being common and similar. He is further right in his submission that such stay order as has been passed in the present case on 10.1.94, may not have been passed. He is supported by the order of this Court passed in the aforesaid LPA No. 922 of 1999 (supra), the relevant portion of which is set out hereinbelow for the facility of quick reference: "...The proceeding for preparation of final decree cannot be stayed on the said ground as the preparation of final decree takes a number of years. The respondent no. 1 in case of preparation of final decree can file an appeal and also pray stay of execution of final decree. We are of the view that the preparation of final decree should not have been stayed by the learned single Judge. Accordingly, the order staying preparation of final decree is set aside. 4. In so far as the contention advanced on behalf of the appellant is concerned that the respondents have or are alienating portions of the suit property absolutely, which will only create complications at the time of disposal of the appeal and adjustment of shares of the parties, it is open to the appellants to make prayer for interim orders to that effect. 5. This application is accordingly disposed of.