JUDGMENT :

Sanjay Priya, J.

Re. Interlocutory application no. 2 of 2019 ( kept at Flag-'B')

2. Heard Mr. Jitendra Kishore, learned counsel for appellant-defendant and Mr. Vijay Kumar, learned counsel for plaintiff- respondent. Both parties have appeared and advanced arguments in support of their case.

3. The counsel for appellant has made prayer in the instant Interlocutory application for staying the further proceedings of Execution case no. 3 of 2014, pending in the Court of Sub-Judge-II, Patna City till disposal of the First Appeal.

4. It has been submitted that appellant is in possession and residing in the suit property/house with the member of her family. The appellant is exclusively using the entire suit property/premises for her residence and earning her livelihood through rent and the suit premises exclusively belongs to her. In the event of delivery of possession the appellant and her family members who are residing in the said residential premises will suffer irreparable loss as they do not have any alternative residential accommodation. It is apparent from perusal of the ex-parte judgment that the suit property is in exclusive use of appellant and there is no access of the plaintiff/respondent therein at present nor plaintiff is using any part thereof.

5. The plaintiff-respondent has filed detailed counter affidavit to the aforesaid Interlocutory Application. It has been submitted that instant Interlocutory Application arises out of F.A. No. 60/2018, which has been filed assailing the so-called ex-parte judgment and decree dated 16.12.2013, passed by learned Sub-Judge-4th, Patna City, in Title Suit No. 112 of 2012, whereby the suit of plaintiff-respondent has been decreed. Learned counsel further submits that instant First Appeal No. 60/18 is not maintainable.

6. Initially, the plaintiff-respondent has filed Title Suit no. 112/2012 against the defendant-appellant, namely, Vidyawati Devi seeking relief for grant of decree for specific performance of contract on the basis of agreement for sale dated 04.02.2011, executed by Vidyawati Devi in favour of present respondent, namely, Raju Kumar Singh. The said suit was decreed ex-parte on 16. 12.2013 on the ground that despite service of notice the defendant of that suit ( appellant herein) failed to appear in the said suit.

7. The defendant-appellant, namely, Vidyawati Devi, having come to know about the existence of ex-parte decree passed in Title Suit No. 112 of 2012, filed Misc. case under Order IX, Rule 13 of the C.P.C. which was numbered as Misc. Case No. 01/2015. In the aforesaid Misc. case, both parties adduced their evidence to substantiate their case and after hearing the parties and perusing the record, the learned Sub-Judge dismissed the aforesaid Misc. case vide its order dated 17.08.2017.

8. Being aggrieved and dissatisfied with the aforesaid order, appellant filed Misc. Appeal No. 842 of 2017 before this Hon'ble Court. The plaintiff-respondent entered appearance and contested the appeal taking specific plea that despite valid service of notice and having knowledge of pendency of Title Suit No. 112 of 2012, defendant-appellant chose not to appear in the Suit. This Court, vide order dated 01.12.2017, arrived at a definite conclusion that despite knowledge of filing and pendency of Title Suit No. 112/2012, the appellant herein, who was defendant in that suit, deliberately and knowingly refused to receive summons which was validly served upon her and did not take pain to put her appearance in the case and contest it which, accordingly, has proceeded ex-parte against her and thereby this Court declined to interfere with the order passed by Sub-Judge in Misc. Case No. 01 of 2015 and dismissed the Misc. Appeal, vide judgment dated 01.12.2017. Being aggrieved and dissatisfied by the aforesaid judgment, the appellant filed S.L.P. No. 2383 of 2018 before the Hon'ble Supreme Court of India which too was dismissed vide order dated 02.02.2018.

9. Learned counsel for the plaintiff-