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Rajasthan High Court · body

2021 DIGILAW 2351 (RAJ)

Nemi Chand v. Dinesh

2021-12-16

PRAKASH GUPTA

body2021
ORDER 1. Matter comes up on an application under Section 151 CPC for passing appropriate order on the stay application. 2. Learned counsel for the appellants-defendants (for short, 'the defendants') submits that the defendants filed the aforesaid appeal challenging the judgment and decree dated 29.2.2016 passed by the trial court. Alongwith the appeal, stay application was also filed. The appeal and the stay application are pending since the year 2016, but till date no effective order has been passed. Now the execution proceedings have been commenced, therefore, appropriate order is required to be passed on the stay application. 3. He further submits that the defendants were not the party in the agreement dated 10.7.1986, therefore no decree for specific performance of the agreement could have been passed against them and for this reason, the same is not executable against them. The respondents-plaintiffs (for short, 'the plaintiffs') wrongly claimed the decree of specific performance against them. 4. He further submits that the defendants are in possession of the suit property, hence operation and / execution of the impugned judgment and decree is required to be stayed. 5. On the other hand, learned counsel for the plaintiffs submits that on 11.5.2016 the present appeal was filed by the defendants and notices were issued to the plaintiffs, whereas the Execution No. 19/2016 for execution of the impugned judgment and decree dated 29.2.2016 was filed on 26.4.2016 i.e. prior to filing the appeal. He further submits that despite receipt of notice of execution case, the judgment debtors i.e. defendants no. 1 to 6 did not appear before the Executing Court and therefore, the decree for specific performance was executed against the defendant nos. 1 to 6, who had executed the agreement to sell in favour of the plaintiffs and on full satisfaction of the decree for specific performance, execution petition was disposed of by the executing court. 6. It is also submitted that the plaintiffs are in possession of the suit property and they were using and occupying the same, but since the defendant nos. 7 to 9 created hindrance in use and occupation thereof and attacked the plaintiffs on 14.12.2019 at the shop, FIR No. 666/2019 was lodged against the defendant(s) at Police Station, Lalsot, Distt. Dausa and after investigation, the police filed the charge sheet against them for the offences under Section 323, 325, 336, 504, 147, 148, 149 IPC. 7 to 9 created hindrance in use and occupation thereof and attacked the plaintiffs on 14.12.2019 at the shop, FIR No. 666/2019 was lodged against the defendant(s) at Police Station, Lalsot, Distt. Dausa and after investigation, the police filed the charge sheet against them for the offences under Section 323, 325, 336, 504, 147, 148, 149 IPC. With malafide intention, on 21.12.2019 the defendant(s) filed a complaint in the Court of ACJM No.l, Lalsot, which was sent to Police for investigation under Section 156 (3) CrPC and after investigation on 25.1.2020, the police filed the negative final report. The defendant nos. 7 to 9 put a lock over the suit property and did not remove the same. On this count, the plaintiffs again filed an execution petition for getting the lock removed with the police help. 7. He further submits that since the defendants no. 7 to 9 (appellants herein) did not file any written statement before the trial Court and neither there was any averment that they were in possession of the suit property nor there was any evidence to this effect, therefore, at this stage, they cannot say that they are in possession of the suit property. He further submits that in view of the above and the fact that the decree for specific performance has already been executed, the stay application is liable to be rejected. 8. Heard. Considered. 9. Taking into consideration the facts and circumstances of the case and more particularly in view of the fact that the decree for specific performance is not being executed against the defendants no. 7 to 9 (appellants herein); and impugned decree for specific performance has already been executed against defendants no. 1 to 6; the defendants no. 8. Heard. Considered. 9. Taking into consideration the facts and circumstances of the case and more particularly in view of the fact that the decree for specific performance is not being executed against the defendants no. 7 to 9 (appellants herein); and impugned decree for specific performance has already been executed against defendants no. 1 to 6; the defendants no. 7 to 9 did not file any written statement before the trial Court and neither there was any averment that they were in possession of the suit property nor there was any evidence to this effect and for the first time, they are claiming before this Court that they are in possession of the suit property, whereas on the other hand, the plaintiffs are claiming their possession over the suit property, which was duly found proved by the trial court, the stay application and the instant application for passing appropriate order on the stay application are malafide, more particularly in view of the fact that FIR No. 666/2019 was lodged at Police Station, Lalsot, Distt. Dausa against the defendant(s) and after investigation, the police filed the charge sheet for the offence under Sections 323, 325, 336, 504, 147, 148, 149 IPC and as a counter blast, the defendant(s) filed a complaint in the Court of ACJM No.l, Lalsot, which was sent to Police for investigation under Section 156 (3) CrPC and after investigation, the police filed the negative final report, both the applications are liable to be dismissed, which stand dismissed with a cost of Rs. 50,000/-, to be paid to the plaintiffs within four weeks from today.