The main legal point established is the need for stay in the execution case pending the appeal and the importance of deciding the first appeal at the earliest.

JUDGMENT

Sanjay Kumar Dwivedi, J. - Heard Mr. Ayush Aditya, learned counsel appearing for the petitioner and Mr. Prakash Chandra, learned counsel appearing for the respondents.

2. The petitioner has preferred this writ petition for quashing the order dated 04.06.2014 passed by the learned District Judge-III, Giridih in Title Appeal No.1 of 2013 whereby and whereunder he has pleased to reject the petition dated 05.03.2013 filed under Order XLI Rule 5 of the Code of Civil Procedure, in which, a prayer was made for stay of further proceeding in Execution Case No.5 of 2013.

3. Mr. Ayush Aditya, learned counsel appearing for the petitioner submits that the plaintiff has filed the suit for partition being Partition Suit No.46 of 2004, which has been decreed up to the Hon''ble Supreme Court. After the said decree in Partition Suit No.46 of 2004, final decree has been prepared. After that the preliminary decree has been confirmed, and final decree has been prepared in the year 2012. Against the said final decree, the title appeal has been filed by the defendant-petitioner which is numbered as Title Appeal No.1 of 2013. He further submits that the title appeal has been preferred on several grounds as one of the ground with regard to the objection raised by the defendant-petitioner. He further submits that it is well settled that any objection in final decree can be decided in appeal and as such the title appeal is pending it was required by the court below to stay the execution proceeding.

4. To buttress his argument, Mr. Ayush Aditya, learned counsel for the petitioner has relied upon the judgment passed by the Hon''ble Supreme Court in the case of Mool Chand Yadav and Anr. Vrs. Raza Buland Sugar Company Limited, Rampur and Ors, (1982) 3 SCC 484 wherein at paragraph 4 which is quoted herein below:

4. We heard Mr S.N. Kacker, learned counsel for the appellants, and the respondents appeared by Caveat through Mr Manoj Swarup, Advocate. We are not inclined to examine any contention on merits at present, but we would like to take notice of the emerging situation if the operation of the order under appeal is not suspended during the pendency of the appeal. If the FAFO is allowed obviously Mool Chand Yadav would be entitled to continue in possession. Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand Yadav would have to vacate the room and hand over the possession to the respondents in obedience to the Court''s order. We are in full agreement with Mr Manoj Swarup, learned Advocate for respondents, that the Court''s order cannot be flouted and even a covert disrespect to Court''s order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal. Mr Manoj Swarup may be wholly right in submitting that there is intentional flouting of the Court''s order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted. Previous history of litigation cannot be overlooked. And it is not seriously disputed that the whole of the building, Hari Bhawan, except one room in dispute is in possession of the Corporation. We accordingly suspend the operation of the Order dated August 6, 1982 directing the appellants to hand over the possession of the room to the respondents till the disposal of the first appeal against that order pending in the High Court of Allahabad. Mr Manoj Swarup requests that both the earlier and later appeals should be heard together as early as possible. We order accordingly and request the High Court if it considers proper in its own discretion to hear both the appeals as expeditiously as possible in order to avoid the continuance of the boiling situation. The appeal stands disposed of. There shall be no order a