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2019 DIGILAW 1849 (JHR)

Mahendra Singh v. Sanjay Jaiswal

2019-11-08

SUJIT NARAYAN PRASAD

body2019
JUDGMENT Sujit Narayan Prasad, J. - This writ petition is under Article 227 of the Constitution of India whereby and whereunder order dated 15.07.2019 passed in Execution Case No. 156 of 2016 has been assailed by which the Executing Court proceeded with the execution proceeding and the writ for delivery of possession has been issued. 2. It is the case of the petitioner that a suit has been filed for title and recovery of possession, in which, adjudication has been made against the petitioner, against which, the first appeal being F.A. No. 65 of 2016 has been filed, which was admitted for hearing vide order dated 15.02.2018. Meanwhile, the decree holder has filed a Execution Case No. 156 of 2016. The first appellate Court while admitting the appeal has passed an ad interim order by staying the further proceeding of Execution Case No. 156 of 2016 pending in the court of Civil Judge, Senior Division, II, Ranchi. The decree holder has filed a petition for proceeding further in the execution case on the ground of judgment rendered in the case of Asian Resurfacing of Road Agency Private Limited and Anr. Vs. Central Bureau of Investigation, (2018) 16 SCC 299 and by allowing the petition directed to proceed further with the execution proceeding. 3. The case of the petitioner is that in spite of the objection raised by the judgment debtor, petitioner herein, about the order passed by the first appellate Court no consideration thereof has been made by the Executing Court. 4. It has been submitted by learned counsel for the petitioner that at the moment petitioner is not in a position to file petition for extension of ad interim stay as has been granted by the first appellate Court in F.A. No. 65 of 2016 due to transfer of record in terms of the order passed in the first appeal by the High Court by virtue of amendment incorporated in the Bengal, Agra and Assam Civil Courts (Jharkhand Amendment) Act, 2018 (Jharkhand Act 09/2019), notified in the Extraordinary Jurisdiction of the District Judge has been raised to Rs. 25 lakhs, the first appellate Court has transmitted the first appeal, being F.A. No. 36 of 2005, before the Principal District & Sessions Judge/Judicial Commissioner, having territorial jurisdiction to hear the appeal. The said record has not yet been transmitted to the Court of First Appeal. 5. 25 lakhs, the first appellate Court has transmitted the first appeal, being F.A. No. 36 of 2005, before the Principal District & Sessions Judge/Judicial Commissioner, having territorial jurisdiction to hear the appeal. The said record has not yet been transmitted to the Court of First Appeal. 5. This Court has enquired from the Registry of this Court with respect to position of transmission of record of F.A. No. 65 of 2016, whereupon it has been informed that as yet the record has not been transmitted to the Court below and most likely it will be transmitted within two weeks. 6. Learned counsel for the petitioner further submits that as on date the record of first appeal has not been received by the Court having its jurisdiction by virtue of amendment Bengal, Agra and Assam Civil Courts (Jharkhand Amendment) Act, 2018 (Jharkhand Act 09/2019), as such he is not in a position to file application for extension of the ad interim stay. Further submission has been made that since the executing Court has passed an order for issuance of delivery of possession and as such if the petitioner would not be granted protection he will suffer irreparable loss and injury. 7. He further submits that the suit premises is the residential accommodation of the petitioner where the petitioner along with his family members are residing. 8. Keeping the aforesaid fact into consideration, more particularly the information which has been received from the Registry that the record of first appeal has not been transmitted to the Court of Principal District and Sessions Judge/Judicial Commissioner, in view of the enactment of amended Act, 2015, list this case after two weeks under the same heading. 9. In the meantime, let notice be issued upon respondents, both by registered post as well as by ordinary process, for which requisites etc must be filed within a week. 10. In addition to above mode of service of notice, the petitioner is directed to serve notice upon the respondents through their counsel representing them in Executing Court. 11. The Executing Court shall furnish report about the service of notice upon respondents. Further, the petitioner shall also file an affidavit to that effect before this Court before the next date of listing. 12. 11. The Executing Court shall furnish report about the service of notice upon respondents. Further, the petitioner shall also file an affidavit to that effect before this Court before the next date of listing. 12. The concerned Section of First Appeal is directed to transmit the record of F.A. No. 65 of 2016 forthwith and place the report to that effect before the next date of listing. 13. List this case on 26.11.2019 under the same heading. 14. Let a copy of this order be handed over to Joint Registrar (Judicial) for needful. Ad Interim 15. In view of the elaborate discussion made herein above and considering the fact that the petitioner is residing in the suit premises along with his family members and more particularly the fact that even if a direction would be passed by this Court for filing an application before the First Appellate Court for passing of an appropriate order, no purpose would be served, since record of first appeal has not yet been transmitted by the Registry of the Court, as per order dated 27.06.2019 in batch of first appeals including F.A. No. 65 of 2016, which is the subject matter of the appeal pertaining to the decree passed in the suit resulted to the Execution Case No. 156 of 2016, and as such, if the petitioner would not be protected for this intervening period, he will be said to have been remediless and so it would be appropriate to pass order to protect the petitioner. 16. In view thereof, further proceeding pertaining to Execution Case No. 156 of 2016 is kept in abeyance till next date of listing.