JUDGMENT

14.8.2013 - This is an application under Order 41 Rule 5 read with Section 151 of the C.P.C. arising out of R.S.A. No.224 of 2012.

2. The appellant-petitioner is the judgment-debtor in Execution Case No.4 of 2012 pending in the court of the learned Civil Judge (Senior Division), Balasore. Appellant-petitioner has preferred the appeal challenging the judgment and decree passed by the learned lower appellate court confirming the judgment and decree of the trial court in a suit for partition bearing T.S. No.403 of 1990-1 in the court of the learned Additional Civil Judge (Senior Division), Balasore which was brought by the appellant-petitioner and was dismissed by the learned trial court. In their written statement, the respondent-O.P. Nos.1 to 3 (defendant Nos.1 to 3 in the suit) had made a counter-claim seeking declaration of their title over Schedule P and Q properties as mentioned in the written statement. The plaintiff-appellant denied the counterclaim challenging the title and possession of defendant Nos.1 to 3 over Schedule P and Q properties. Learned trial court rejected the counter-claim but the learned lower appellate court allowed it declaring the title of defendant Nos.1 to 3 over the counter-claim properties and directed eviction and recovery of possession. Thus, the Execution Proceeding is regarding delivery of possession of the counter claim properties which is, admittedly, in the occupation of the appellant-petitioner.

3. In the present petition, the petitioner in support of the petition for stay of the Execution Proceeding, has contended that he has got a very good prima facie case and fair chance of success in the Second Appeal and that unless the Execution Proceeding is stayed, the petitioner who is, admittedly, in possession of the properties will be highly prejudiced and will suffer substantial loss.

4. In their objection, the opposite party-respondent Nos.2 and 3 (Respondent No.1 has died during pendency of the Second Appeal leaving behind respondent Nos.2 and 3 as his legal heirs) have contended that the appellant has absolutely no chance of success in the Second Appeal and that it is not the appellant but the Respondent Nos.2 and 3 who will suffer substantial loss in the event the Execution Proceeding is stayed.

5. The parties to the suit hail from common ancestor late Sadasiv whose four sons are the four branches of the family tree. Plaintiff is one of the sons of Sadasiv’s second son and D.1 to 3 are members of the branch of Mahendra, the 4th son of Sadasiv. There is no dispute between the parties that the joint family property was partitioned long back. According to the plaintiff the sons of Sadasiv partitioned the properties on 28.5.1932 whereas according to D.1 to 3 the partition took place in the year 1929. Defendants 1 to 3 are the widow, son and daughter, respectively, of Mahendra. The plaintiff claims to be the adopted son of Mahendra which is denied by D.1 to 3. So far as Schedule P & Q properties of the counter claim are concerned, plaintiff’s stand is that being the adopted son of Mahendra he has been in possession of the same since 1971. D.1 to 3 admit plaintiff’s possession but their contention is that since Mahendra’s son (D.2) was staying away from her widow mother (D.1), the latter reposing confidence on the plaintiff had entrusted some of her responsibilities to the plaintiff who later on played treachery and creating some documents clandestinely, showing himself to be the adopted son of Mahendra, got possession over the counter claim properties.

6. Admittedly, the plaintiff-appellant has been in continuous possession of the counter claim properties much prior to the institution of the suit. It is to be examined if at this stage of the litigation the executing court should be permitted to go ahead with the execution proceeding to evict the appellant from the properties in question. The foremost factor to be considered before going to pass an order of stay execution of a decree is t