JUDGMENT :

The present writ petition is taken up today through Video conferencing.

The present writ petition has been filed challenging the order dated 04.01.2019 passed by the Civil Judge (Sr. Division)-I, Gumla in Execution Case No. 01 of 2014, whereby a petition filed on behalf of the decree holders/respondents for vacating the order dated 17.06.2017 granting stay has been allowed by the said executing court with direction to the Nazir to execute the writ as issued earlier.

2. The factual background of the case as stated in the writ petition is that the father-in-law of the respondent no. 1/father of the respondent no. 2 namely, Budhua Oraon filed a suit for partition being Partition Suit No. 15 of 1989 against his younger brother Charwa Oraon (father of the petitioner) and the said suit was decreed in favour of the deceased plaintiff vide judgment dated 27.07.1991 and the preliminary decree was prepared on 03.08.1991. After the death of the original plaintiff, the respondent nos. 1 and 2 were substituted as heirs of the decree- holder. The son of the deceased defendant namely, Balram Oraon (the petitioner herein) filed Title Suit No. 14 of 2004 before the court below for declaration of his right, title and interest upon the suit property seeking a further direction stating therein that the respondent nos. 1 and 2 had no concern with late Budhua Oraon. It was also prayed therein for issuance of temporary injunction against the respondent nos. 1 and 2 to restrain them from seeking appointment of Pleader Commissioner for carving out the share of the plaintiff in Partition Suit No. 15 of 1989 till disposal of the said suit and if the Pleader Commissioner had been appointed, the work of the Pleader Commissioner be also restrained. The suit was, however, dismissed vide judgment dated 30.05.2015 (decree signed on 08.06.2015). Aggrieved thereby, the petitioner preferred Title Appeal No. 11 of 2015 in the court of Principal District Judge, Gumla which is still pending. During the pendency of the Title Suit No. 14 of 2004, the respondent nos. 1 and 2 had filed Execution Case No. 1 of 2014 for executing the decree passed in Partition Suit No. 15 of 1989, wherein the petitioner made an application under Order XXI Rule 29 CPC praying inter alia for staying the execution proceeding till the disposal of Title Appeal No. 11 of 2015 stating therein that the land appertaining to execution proceeding and Title Appeal No. 11 of 2015 is same and identical and the said title appeal was sub-judice before the appellate court. The executing court stayed the execution proceeding vide order dated 17.06.2017 and directed the Nazir to stop the execution till further order on the said petition. Thereafter on 03.10.2018, the respondents filed a petition before the executing court for vacating the stay giving reference to the judgment rendered by the Hon’ble Supreme Court in the case of “Asian Resurfacing of Road Agency Pvt. Limited & Anr. Vs. Central Bureau of Investigation” reported in 2018(2) JLJR 320 (SC)., which was allowed by the executing court and the stay granted in the matter was vacated.

3. The learned counsel for the petitioner submits that the learned court below failed to consider that the present case is of exceptional nature as continuation of stay is much more important than getting the decree executed. The learned court below has failed to appreciate that the land appertaining to execution proceeding as well as Title Appeal No. 11 of 2015 is same and identical and the said title appeal is sub-judice before the appellate court and as such, the vacation of the stay order will cause irreparable loss and injury to the petitioner. It is also submitted that the executing court has also not considered that the Title Appeal No. 11 of 2015 is in fact continuance of Title Suit No. 14 of 2004.

4. The learned counsel for the petitioner in support of his submission has put reliance on paragraph no. 2 of the judgment rendered by the Hon’ble Supreme Court