The court emphasized the importance of considering the prima facie case and potential irreparable injury in deciding on a prayer for stay of execution, and highlighted the need for timely disposal of the appeal.

This civil revision by the defendant-appellants is directed against order dated 4.7.97 passed in Title Appeal No. 13/78 of the court 1st Additional District Judge, Gopalganj rejecting their prayer for stay of the execution proceeding vide Execution Case no. 15/89 in terms of Order 41 Rule 5 of the Code of Civil Procedure.

2. The dispute has rather a long history. For the purpose of this civil revision it may only be stated that the suit brought by the plaintiff-opposite party in the year 1967 was decreed in the year 1978. The petitioners preferred appeal (TA No. 13/78). After the plaintiffs filed Execution Case (15/89) the petitioners filed an application in the lower appellate court for the stay of the execution proceeding under Order 41 Rule 5 CPC which was rejected on 31.5.89. They came in civil revision (CR No. 1057/89). The revision was disposed of on 21.11.89 with the observation that the petitioners may file a fresh petition for stay. The appeal in the lower appellate court (TA No. 13/78) was directed to be disposed of within two months. Accordingly, on 30.1.90 the petitioners filed a fresh petition for stay. Before any order could be passed on the petition the appeal itself was disposed of on 23.3.90. The judgment of the trial court was set aside and the suit was remanded. The plaintiffs-opposite party challenged the remand order in this court in Misc. Appeal No. 114/90. On 5.8.96 the appeal was allowed. The lower appellate court was directed to decide the appeal, i.e. Title Appeal No. 13/78, on merit. The order is said to have been communicated to the court below on 6.2.97. On 7.4.97 the petitioner filed a petition for stay of the execution proceeding under Order 41 Rule 5 of the Code. By the impugned order the petition has been rejected.

3. It is not in dispute that the subject matter of the suit/appeal is a house. Counsel for the plaintiff-opposite party submitted that on own saying of the petitioners the house has been let out on rent. Thus, according to the counsel, the petitioners are not going to suffer any loss or injury. It is not possible to accept the contention. It is obvious that the tenants in occupation of the house cannot approach the Court for any relief. As persons who admittedly inducted them in the house, it is the duty of the petitioners to protect their interest. In any view, the petitioners will be deemed to be in constructive possession of the house of the tenants. If the tenants are dispossessed from the house it would amount to dispossessing the petitioners. The contention of the counsel for the opposite party is, accordingly, rejected.

4. It is the practice of the Court to stay execution proceeding in respect of the residential house. Whatever be the ground on which the judgment and decree of the trial court was set aside on 23.3.90, by reason of the fact that appeal is pending and at one stage this Court had permitted the petitioner to file fresh petition and directed the court below to dispose of the same within the time-frame. I am inclined to think that the petitioners have a prima facie case and they will suffer irreparable injury if they are removed from the house. Balance of convenience also lies in their favour.

5. In these premises, I hold that the court below committed error in rejecting the prayer for stay. The order dated 4.7.97 is accordingly set aside. Further proceedings in Execution Case No. 15/89 in the court of Munsif, Gopalganj shall remain stayed till disposal of Title Appeal No. 13 of 1978.

6. Regard being had to the fact that this Court had on the previous occasion directed the court below to dispose of the appeal within a period of two months and that order was passed in the year 1989, I am of the view that a similar direction should be issued for disposal of the appeal within a time-frame. Keeping in view the ensuing Annual Vacation I would direct the court below (1st Additional District Judge, Gopalganj) to dispose of Title Appeal No. 13 of 1978 as early as possible