IMPORTANT POINT
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.

ORDER (ORAL)

Re : I.A. No. 04 of 2025 —The instant matter has been taken up in the light of the direction given by the Civil Motion Bench of this Court to the Listing Section to list this matter before this Bench on 27.02.2025 at the top.

2. In this interlocutory application, the appellants, who were defendants before the trial court, have made a prayer under Order 41 Rule 5 read with section 151 of the Code of Civil Procedure, 1908 (in short ‘C.P.C.’) for staying the proceeding in the Execution Case No. 767/2023 having arisen in the light of judgment and decree which have been challenged in this appeal.

3. The appellants were defendants and the respondent No. 1 was the sole plaintiff before the trial court and the defendant Praveen Kumar Banerjee, who was made as respondent No. 2 in this appeal, died before the filing of the appeal, so, his legal heirs were made as proposed respondents Nos. 2(a) to 2(c) and the defendant Vandana Chaterjee has been made as respondent No. 3 in this appeal.

4. The instant matter relates to the specific performance of contract and the case of the plaintiff/respondent No. 1 is based on a deed of agreement for sale of suit property and his suit was decreed and the execution process has been started as per the appellants’ counsel and the same is at final stage.

5. Mr. Amit Shrivastava, learned senior counsel appearing for the appellants submits that as per the case of plaintiff, one namely, Dr. Parsun Kumar Banerji @ Prashun Kumar Banerjee (in short ‘P.K. Banerjee’ and now deceased), father of the appellants entered into an agreement for sale of the suit property with the plaintiff on 24.02.2008 and the consideration amount for the sale was fixed as Rs. 3,60,00,000/- (Rupees Three Crores and Sixty Lakhs) and the suit property is described in Schedule 1 of the plaint. As per the pleading of the plaintiff, he had paid Rs. 2,02,00,000/- (Rupees Two Crores and Two Lakhs) to the father of the appellants by way of advance money on different dates for purchasing the suit property and as per the disputed deed of agreement for sale, the suit property was to be transferred by executing and registering the sale deed till 31.12.2010 but the case of the plaintiff is completely false and is based on a forged document which is claimed to be a deed of agreement for sale and in this regard, there are some strong circumstances. Firstly, the deed of agreement is said to have been prepared on a non-judicial stamp of Rs. 50/- which is in itself highly suspicious as upon it, the date relating to the issuance of said stamp is not visible. Secondly, in the deed, it is mentioned that the advance money of consideration being Rs. 2,02,00,000/- (Rupees Two Crores and Two Lakhs) was paid by the plaintiff to the proposed seller (father of the appellants) on different dates but in this regard, the said statement in the deed is completely vague as no particular date or place, where the said payments were made, has been disclosed and the most important thing is that before the trial court, plaintiff’s witnesses including P.W.-3, namely, Ramesh Jyoti, a so-called witness of the execution of the deed of agreement, deposed that the entire amount of Rs. 2,02,00,000/- was given on one occasion while in this regard, a contradictory statement is mentioned and made in the disputed deed as well as in the evidence of plaintiff himself. Thirdly, the deed in question is not a registered document and has no signature of any family member of the proposed seller, Late P.K. Banerjee, while as per the case of the plaintiff, the deed was prepared at the residential place of proposed seller situated in Kolkata but very surprisingly, no attempt was taken by the plaintiff to get the signature of any family member of late P.K. Banerjee and all the witnesses shown on the deed are very interested in the plaintiff and in this regard, their evidence may be perused. Fourthly, the stamp paper of the disputed deed is said to have been issued in Patna but the sa