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PRAKASH GUPTA
Nemi Chand – Appellant
Versus
Dinesh – Respondent
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
The court established that a stay application can be dismissed if the applicant fails to demonstrate possession and if a decree has already been executed against other parties.
A petitioner seeking to stay execution of a decree must act diligently and with clean hands; otherwise, relief may be denied.
Stay of proceeding in Execution Case – Appeal is considered to be continuation of suit and subject matter of dispute must be kept safe till attaining finality ofissue by way of judgment.
A decree for specific performance implies an entitlement to possession, even if not explicitly stated, and the executing court must ensure this right is upheld.
The appellate court correctly dismissed the stay application, affirming the need for the defendant to argue the appeal on merits without unnecessary delays.
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