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2018 DIGILAW 27 (JHR)

Sushil Kumar Bariyar v. Sanjeev Kumar

2018-01-04

SHREE CHANDRASHEKHAR

body2018
ORDER : Chandrashekhar, J. Aggrieved of order dated 03.12.2011 passed in Execution Case No. 5 of 2010 by which the application dated 21.11.2011 has been dismissed, the petitioner has approached this Court. 2. Heard. 3. Mr. V. Shivnath, the learned senior counsel for the petitioner referring to application dated 21.11.2011 submits that a composite application for clubbing Execution Case No. 5 of 2010 with Misc. Case No. 41 of 2011 and for staying further proceeding in Execution Case No. 5 of 2010 till the disposal of Misc. Case No. 41 of 2011 was made, however, the learned trial Judge has dealt with only the first part of the prayer in the said application and the prayer for staying further proceeding in Execution Case No. 5 of 2010 was not adjudicated by the trial Judge and while so on that ground alone the impugned order dated 03.12.2011 is liable for interference by this Court. 4. Mr. Amar Kumar Sinha, the learned counsel for the respondent No. 1 submits that a sale-deed was already executed on 23.12.2011 and therefore application dated 21.11.2011 was maintainable. It is further contended that the petitioner had no subsisting right in the suit properties and while so, the application dated 21.11.2011 has rightly been dismissed. 5. Shorn of unnecessary details, suffice would be to record that Title Suit No. 328 of 2007 which was instituted for a decree for specific performance of agreement dated 30.03.2007 was decreed on 28.07.2009 and thereafter Execution Case No. 5 of 2010 was instituted by the decree-holder. The petitioner has filed an application under Order XXI, Rules 97, 99 and 101 read with Section 151, CPC which has been registered as Misc. Case No. 41 of 2011. During pendency of the execution case an application dated 21.11.2011 was filed in Execution Case No. 5 of 2010. The discussion and findings recorded by the trial Judge in its order dated 03.12.2011 on the said application reads as under:- "Miscellaneous case No. 41/11 is filed relating to this execution case fixed for hearing on 9.12.2011. Both the cases are separated and therefore for the interest of justice the case execution No. 5/10 and miscellaneous case No. 41/11 will be heard separately. In this case sale-deed is filed for execution. Saristadar is directed to execute sale-deed. Learned lawyer for decree-holder also prayed that my court-fee will be damaged if no execution is made within time. Both the cases are separated and therefore for the interest of justice the case execution No. 5/10 and miscellaneous case No. 41/11 will be heard separately. In this case sale-deed is filed for execution. Saristadar is directed to execute sale-deed. Learned lawyer for decree-holder also prayed that my court-fee will be damaged if no execution is made within time. This case is fixed on 9.12.2011 for execution of sale-deed." 6. Apparently, non-consideration of the prayer for staying further proceeding in Execution Case No. 5 of 2010 renders the impugned order dated 03.12.2011 unsustainable on that issue. Insofar as the prayer for clubbing/tagging the record of Execution Case No. 5 of 2010 along with Misc. Case No. 41 of 2011 is concerned, I find no infirmity in the order passed by the trial Judge. 7. The proceeding in this writ petition would disclose that on 10.01.2012 this Court has passed the following order:- "Issue notice to respondent Nos. 1, 2 and 3. Returnable at an early date. Steps shall be taken by the learned counsel to serve the respondents by ordinary process within one week. Submission of the learned counsel is that the petitioner is a purchaser of the property which was subject-matter of suit for specific performance in which the petitioner was arrayed as a party. The suit was instituted subsequent to the sale-deed executed in favour of the petitioner. In the circumstances, the decree was passed behind his back. During the execution proceedings, an application under Order XXI, Rule 97 has been preferred which is pending adjudication. In view of these circumstances, execution of the decree in Execution Case No. 5 of 2010 arising out of Title Suit No. 328 of 2007 shall remain stayed, till the next date of listing. No sale-deed shall be executed in lieu of the execution decree." 8. Order dated 24.02.2012 passed in the present proceeding discloses that an application was filed by the petitioner alleging that in breach of the interim order dated 10.01.2012, a sale-deed was executed on 22.12.2011. Order dated 24.02.2012 reads as under: "In the instant writ petition, an interim order was passed on 10.01.2012 staying the Execution Case No. 5 of 2010 arising out of Title Suit No. 328 of 2007. It was specifically directed that no sale-deed shall be executed in lieu of the execution decree. Order dated 24.02.2012 reads as under: "In the instant writ petition, an interim order was passed on 10.01.2012 staying the Execution Case No. 5 of 2010 arising out of Title Suit No. 328 of 2007. It was specifically directed that no sale-deed shall be executed in lieu of the execution decree. I.A. No. 278 of 2012 is preferred stating therein that despite interim order sale-deed has been executed and the petitioner is likely to be evicted. Specific assertion has been made in paragraph Nos. 19 and 20 of the Interlocutory application. It is submitted that sale-deed was executed on 22.12.2011. In the facts and circumstances pursuant to the execution of the aforesaid sale-deed, it is directed that the petitioner shall be dispossessed from the property in question till the next date of listing. I.A. No. 278 of 2012 stands disposed of." 9. Mr. Amar Kumar Sinha, the learned counsel for respondent No. 1 submits that the petitioner has filed I.A. No. 7089 of 2016 dated 18.10.2016 for vacating stay granted vide order dated 24.02.2012. 10. The contention raised by the respondent No. 1 is that the interim order dated 10.01.2012 was obtained by suppressing true facts, for before interim order dated 10.01.2012 was passed, the sale-deed was already executed. 11. I find that it has been duly recorded in order dated 24.02.2012 that the sale-deed was executed on 22.12.2011 and accordingly, I find no reason to recall order dated 24.02.2012. In view of non-consideration of the prayer by the trial Judge for staying further proceeding in Execution Case No. 5 of 2010, it is hereby ordered that the order passed on 24.02.2012, regarding dispossession of the petitioner from the property, shall continue till the prayer for stay vide application dated 21.11.2011 is finally decided by the trial Judge. 12. The writ petition stands partly allowed. The application dated 21.11.2011 is restored to its original file in Execution Case No. 5 of 2010. The trial Judge shall, after affording proper opportunity of hearing to both the parties, pass a final order on the said prayer in the application dated 21.11.2011. 13. The writ petition stands disposed of, in the above terms. Accordingly, I.A. Nos. 48 of 2012, 1344 of 2014 and 7089 of 2016 stand disposed of. Petition disposed of.