ORDER

Re. I.A. no. 1 of 2022 and I.A no. 3 of 2022

Heard learned counsel for the appellant and learned senior counsel for the respondents.

2. I.A. no. 1 of 2022 has been filed on behalf of the appellant praying for staying further proceedings of Execution Case no. 5 of 2020 and/or to stay the dispossession of the appellant in Execution Case no. 5 of 2020 pending in the Court of learned Sub-Judge I, Aurangabad. I.A. no. 3 of 2022 has been filed on behalf of respondent nos. 1, 2 and 12 praying that the stay granted of the proceeding of Execution Case no. 5 of 2020 by order dated 21.7.2022 passed in I.A. no. 1 of 2022, be vacated.

3. It is submitted by learned counsel appearing for the appellant that while against the preliminary decree dated 30.7.2018 passed in Partition Suit no. 180 of 2010 by the learned Sub-Judge II, Aurangabad, F.A. no. 127 of 2018 has been preferred, the instant appeal has been preferred against the final decree dated 16.10.2019 passed in Partition Suit no. 180 of 2010 by the learned Sub-Judge I, Civil Court, Aurangabad.

4. On merits it is submitted by learned counsel for the appellant that the appellant was appearing in the learned Court below till 4.9.2018. By order dated 24.9.2018 a Survey Knowing Pleader Commissioner was appointed and he submitted his report on 7.3.2019. Without giving any notice to the appellant, by order dated 5.7.2019 the final decree proceedings were transferred from the Court of learned Sub- Judge IV to the Court of learned Sub-Judge I, Aurangabad. It is submitted that the appellant has merit in his appeal in so far as no notice was given to the appellant on transfer of the final decree proceedings to the Court of learned Sub-Judge I, Aurangabad, no information/notice was given to the appellant on the Survey Knowing Pleader Commissioner going for inspection of the suit property and from perusal of the order dated 16.10.2019 accepting the report of the Survey Knowing Pleader Commissioner and which is under challenge in the instant appeal, it would transpire that the same has been accepted by the learned Court below by a non speaking order devoid of any reasons. With respect to the defects, it is submitted that they have been removed pursuant to the order dated 20.7.2022 expect for one clerical defect in the certified copy of the decree. There is no impediment in grant of stay.

5. On the prayer of stay made in the interlocutory application it is submitted by learned counsel appearing for the appellant that it is not in dispute that the subject matter of the property in the case is a residential house of the appellant and in the event of dispossession, the appellant will suffer irreparable injury and loss. It is submitted that out of the total area measuring 34¼ decimal, the appellant by virtue of four sale deeds has sold a total area of only 24 decimal of land and is still owning and possessing the remaining 10¼ decimal of land with a residential house therein. While she is residing in part of the suit house, there are tenants residing in a portion of the same. She has no other alternative accommodation in the city. It s further submitted that with respect to the address given in her Aadhar Card, the appellant also owns and possesses some property at Patna where the property of her husband is situated. After suffering serious illness, her husband died on 22.2.2019. As such it is submitted that it is incorrect on part of the respondents to submit that in view of the fact that the address of the appellant in her Aadhar Card is of Patna, she does not reside in the residential house at Aurangabad. Further in support of his submissions learned counsel for the appellant relies on the judgment in the case of Smt. Tej Rani Devi vs. Smt. Indira Devi [2001 (1) PLJR 661], Atma Ram Properties (P) Ltd. vs. Federal Motors Pvt. Ltd. [2005(1) PLJR 320 (SC)] and Rajaram Prasad Gupta and Anr vs. Ramchandra Prasad and others [(2008) 10 SCC 796].

6. In reply, it is submitted by learned counsel appearing for th