A stay of execution granted by the trial court in a title execution case until the disposal of a subsequent partition suit filed by a third party was erroneous as the judgment and decree in the title suit had attained finality and could not be deviated from by a subsequent suit.

Prasenjit Mandal, J.

This application is at the instance of the decree-holder and is filed against the Order No. 186 dated July 20, 2012 passed by the learned Civil Judge (Junior Division), 1st Court, Midnapore in Title Execution Case No. 6 of 1996 thereby staying all further proceedings of the said title execution case till the disposal of the Title Suit No. 160 of 1998 pending before the learned Civil Judge (Senior Division), 1st Court, Midnapore.

2. In the year 1989, the plaintiff/decree-holder/petitioner herein instituted a suit being Title Suit No. 226 of 1989 against the judgment debtor praying for declaration of right, title, interest and possession over the suit property and other consequential reliefs. The defendant/opposite party no. 1 contested the said suit denying the material allegations raised in the plaint. The said suit was decreed on contests on January 31, 1996. Thereafter, the decree-holder filed the aforesaid Title Execution Case No. 6 of 1996 for execution of the decree obtained in the said suit.

3. The defendant/opposite party no. 1 preferred an appeal being Title Appeal No. 45 of 1996 before the learned Additional District Judge, 1st Court, Midnapore and the said title appeal was also dismissed on contests with costs on September 15, 2000 affirming the judgment and decree passed by the learned Trial Judge in the said title suit.

4. Thereafter, the defendant/opposite party preferred a second appeal being S.A. No. 23 of 2006 also against the judgment and decree of the Appellate Court and the said second appeal was also dismissed on contests thereby affirming the judgment and decree passed by the Courts below.

5. In order to prevent the execution of the decree, the defendant/judgment debtor/opposite party herein filed an application under Section 47 of the C.P.C. and that application being the Misc. Case No. 25 of 2001 was also dismissed by the order dated January 15, 2010.

6. A rivisional application being Civil Revision No. 1 of 2010 was preferred before the learned District Judge, Midnapore against the dismissal of the Misc. Case No. 25 of 2001 and the said revision case was also dismissed.

7. Thereafter, a 3rd party namely one Fakir Ahmed filed a suit being Title Suit No. 160 of 1998 for partition of the suit property and other parties and that suit is pending.

8. Under such circumstances, when an application for stay of the execution case was filed, that application was allowed by the impugned order. Being aggrieved, this application has been preferred by the decree-holder.

9. Now, the question is whether the impugned order should be sustained.

10. Having heard the learned Counsel for the parties and on going through the materials on record, I find that the facts as narrated above are correct. Under such circumstances, in my view, the learned Executing Court has committed a blunder in allowing the application for stay in the execution case till the disposal of the partition suit being Title Suit No. 160 of 1998 filed by a 3rd party long after the execution case had been filed. The judgment and decree passed by the learned Trial Judge in Title Suit No. 226 of 1989 had attained finality when the second appeal was dismissed affirming the judgments and decrees passed by the learned 1st Appellate Court and the learned Trial Court. So, that decree is to be executed and accordingly, such steps for execution of the decree were taken by the decree-holder / petitioner herein.

11. As noted above, it appears that the judgment debtor/opposite party herein took every sort of steps available to him to frustrate the execution of the decree and all those attempts came to a failure.

12. Finding no other way, certainly I should say, another person namely one Fakir Ahmed was set for filing a suit being Title Suit No. 160 of 1998 for partition and other consequential reliefs. A partition suit is generally disposed of completely after consuming a considerable period of time, may be even years together, in view of the fact th