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2004 DIGILAW 714 (PAT)

Purushottam Kumar Verma v. Ram Singh

2004-07-20

M.L.VISA

body2004
Judgment 1. The appellants have filed I.A.No. 3068 of 2004 under Order XLI, Rule 5 read with Section 151 of Code of Civil Procedure (Inshort "C P C") for staying further proceedings of Execution Case No. 4 of 2003 pending in the Court of Sub-Judge VI, Chapra till the final disposal of this appeal. 2. Brief facts of the case are that respondents No.1 to 4 had filed Partition Suit No. 101 of 1990 for their half share in Schedule-ll of the plaint which included 5 kathas 14 dhurs of land of Plot No. 3207 of Khata No.1013 with a house (for the purpose of disposal of this petition hereinafter referred to as "suit house") and other lands and also shares to different extent in their lands described in other schedules of plaint. The suit was decreed and, thereafter, final decree was prepared against which the appellants who were defendants No. 13 and 14 before the Court below and who are purchasers of the suit house from respondent No. 5 in this appeal who was defendant No. 5 in the original suit have preferred this appeal. According to appellants, the suit house was purchased by appellant No. 2 and mother of defendant No.1 on 26.8.1966 for consideration of Rs. 10,000/- from respondent No. 5 which was his self-acquired property and after purchase, appellants made further construction and investment in the house which was already standing there from before and now value of the land is much more than its original value but a suit for partition was filed by respondents to defeat the right and title of appellants. Their further case is that Pleader Commissioner, in absence of appellants and without adjusting the suit house in the share of vendor of appellants has prepared the final decree. Their further case is that they have filed first appeal No. 260 of 2002 against the judgment and preliminary decree of the Court below and that appeal is pending before this Court for disposal and appellants have got good case on merit and there is every chance of their success in the appeal. It is also the case of the appellants that balance of convenience lies in their favour and they will suffer irreparable loss if stay is not granted by this Court. It is also the case of the appellants that balance of convenience lies in their favour and they will suffer irreparable loss if stay is not granted by this Court. Prayer has been made for staying the further proceedings of Execution Case No. 4 of 2003 pending in the Court of SubJudge VI. 3. Respondent No.1, by filing counter-affidavit to the application of appellants, has opposed the prayer of appellants stating that suit house is situated in the residential area of Chapra Town and was purchased by the joint family property and respondent No.1 has half share in it and respondent No. 5 who was defendant No. 1 in the original suit admitted in his written statement that the properties purchased before 1964 are joint family properties still he, in collusion with appellants, executed sale deed in their favour. He has denied the allegation of appellants that they made investment in further construction of suit house. According to respondent No.1, Advocate Commissioner prepared the final decree after giving notices to parties and visiting the spots several times and learned Sub-Judge VI has confirmed the Pleader Commissioners report. The further case of respondent No. 1 is that Advocate Commissioner has allotted only half share in the suit house to him and he has got no other house in Chapra Town except the suit house. It is further stated on behalf of respondent No.1 that the appellants are residing in a separate house situated in Mohalla-Bharat Milap Chowk and in the suit house, one Rajive Prasad is residing as tenant on a monthly rental of Rs. 700/- and this fact is supported from the report of Advocate Commissioner dated 29.3.2004 when he has visited the suit house to give delivery of possession to respondent No.1 of his share. According to respondent No.1, Pleader Commissioner has given delivery of possession to him on the vacant land but the delivery of possession" regarding house was not given to respondent No. 1 on the objection raised by advocate of appellants. According to respondent No.1, Pleader Commissioner has given delivery of possession to him on the vacant land but the delivery of possession" regarding house was not given to respondent No. 1 on the objection raised by advocate of appellants. About appellants, the case of respondent No.1 is that they are purchasers from respondent No. 5 and half of the suit house with half of vacant land has been allotted to the share of respondent No.1 in which, as stated above, tenant Rajive Prasad is residing and another half has been allotted to the share of appellants in which one Sanjay Kumar is residing as tenant of appellants on a monthly rental of Rs. 700/-. The learned counsel appearing on behalf of respondent No.1 has submitted that since appellants themselves are not residing in the portion of the suit house which has been allotted to respondent No.1 and they have given it on rent to Rajive Prasad, there is no question of suffering any irreparable loss to appellants if their prayer for staying the further proceedings of execution case is refused. It is further submitted that respondent No.1 is ready to deposit a sum of Rs. 700/- per month in the Court below which may be kept deposited and be made subject to final decision of this appeal. In my opinion, if the proposal of respondent No.1 is accepted, question of suffering any irreparable loss by appellants will not arise if their prayer is not allowed. The suggestion of respondent No.1 appears to be fair and it will not cause any inconvenience to any body. 4. Respondent No.1 is, therefore, directed to deposit a sum of Rs. 700/- per month in Court below from the date. when he gets delivery of possession of his share in suit house allotted to him. The aforesaid amount for every month must be deposited latest by 15th day of succeeding month. 5. With this observation, the prayer of appellants for staying the further proceedings of Execution Case No. 4 of 2003 is rejected and I.A. No. 3068 of 2004 stands disposed of.