NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (227) No. 272 of 2024 • Shreekant Gowardhan S/o Late Madhukar Rao Gowardhan Aged About 68 Years R/o Near Vitthal Temple, Gowardhan Bada, Tilak Nagar, Bilaspur, Tahsil And Also At- Plot/house No. 22, Shrikrishna Apartment, Behind Abhyankar Nagar Petrol Pump, Nagpur (Maharashtra), District : Bilaspur, Chhattisgarh ---- Petitioner Versus

1. Dilip Gowardhan S/o Late Madhukar Rao Gowardhan Aged About 61 Years R/o Near Vitthal Temple, Gowardhan Bada, Tilak Nagar, Bilaspur (Defendant No. 1), District : Bilaspur, Chhattisgarh

2. State Of Chhattisgarh Through The District Collector, District :

Bilaspur, Chhattisgarh ---- Respondents ----------------------------------------------------------------------------------------------

For Petitioner : Mr. Hari Agrawal, Advocate For Respondent No.2/State : Mr. RCS Deo, Panel Lawyer For Respondent No.1 : Not noticed.

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Hon'ble Shri Justice Naresh Kumar Chandravansh i Order On Board

08.4.2024

1. Heard.

2. The petitioner has preferred this petition challenging order dated 22.02.2024 passed by 4^th Upper District Judge, Bilaspur (CG) in Civil Appeal No.14A/2024, whereby the said Court has passed ex-parte stay order on the execution of the judgment and decree dated 29.01.2024 passed in Civil Suit No.95A/2019 by the

4^th Civil Judge Class-II, Bilaspur (CG).

3. Learned counsel for the petitioner submits that in Civil Appeal No.14A/2024 pending before 4^th Upper District Judge, Bilaspur, an application under Order 41 Rule 5 of the CPC i.e. IA No.01/2024 was filed by respondent/defendant, wherein vide Order dated 15.02.2024, the case was fixed for argument on IA No.01/24 on 22.02.2024 and it was fixed for appearance of the petitioner/respondent therein on 14.3.2024. It is further submitted that vide impugned order dated 22.02.2024, learned appellate Court has allowed the aforesaid application in absence of the petitioner/respondent therein. It is further submitted that IA No.01/2024 has been allowed finally without providing opportunity of hearing to the petitioner, hence, this petition may be disposed of directing the learned trial Court to decide the said application after providing due opportunity to the petitioner/respondent therein.

4. Learned counsel for the petitioner/respondent therein has filed certified copy of the order sheets of the appellate Court, which shows that vide Order dated 15.02.2024, the case was fixed for hearing of IA No.01/2024 on 22.02.2024 and it was fixed for appearance of the petitioner/respondent therein on 14.3.2024 and vide Order dated 22.02.2024, the learned appellate Court has allowed the application (IA No.01/2024) under Order 41 Rule 5 of the CPC in absence of the petitioner/respondent therein and stayed the execution of Judgment and decree dated 29.01.2024 passed in Civil Suit No.95A/2019, till disposal of appel or till further order.

5. As per Order 41 sub-rule 4 of Rule 5 of CPC, in absence of respondent, stay on the judgment and decree can be passed on temporary basis and such application can be decided finally after appearance of the respondent, but in the instant case, learned appellate Court has decided the application by both way without providing opportunity to the petitioner/respondent therein.

6. In view of the above discussion and considering the provisions of Order 41 sub-rule 4 of Rule 5 of the CPC, Order dated 22.02.2024 is directed to be remain effective till one month from today. In between, learned 4^th Upper District Judge, Bilaspur is directed to consider and decide the application (IA No.01/2024) filed under Order 41 Rule 5 of CPC, afresh, within aforesaid period by providing opportunity of hearing to both the parties

7. The parties are also directed to cooperate with the appellate Court.

8. In view of the aforesaid observation and direction, the petition stands disposed of.

Sd/-

(Naresh Kumar Chandravanshi)

JUDGE Bini