1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(C) No.3444 of 2019

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Sr. Prasanna

………

Petitioner

Versus

1. Arbind Kumar

2. Harold Anand Kumar Mundle

……….

Respondents

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CORAM

: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner

: Mr. Rahul Kumar Gupta, Advocate

: Mr. S.R. Soren, Advocate

For the Respondents

:

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05/22.10.2019 Learned counsel for the petitioner, at the outset, has sought for

leave of this Court to delete the provision of Article 226 of the

Constitution of India, under which, also the jurisdiction of this Court

has been invoked apart from Article 227 of the Constitution of India.

2.

It has been submitted that since the judicial order is under

challenge, as such, the writ petition ought to have been filed only

under Article 227 of the Constitution of India under its supervisory

jurisdiction but due to inadvertence Article 226 has also been inserted

along with Article 227.

3.

This Court after considering the aforesaid submission deem it fit

and proper to accord such liberty to the petitioner.

4.

In view thereof, the petitioner is directed to make necessary

correction in the cause title of the writ petition by deleting Article 226

of the Constitution of India.

5.

The order dated 13.05.2019 passed in Civil Appeal No.20 of

2018, by which, petition filed under Order 41 Rule 5 of the CPC, has

been rejected.

6.

The brief facts of the case as per the material available on record

is that respondent no.1/plaintiff has instituted a suit being title suit

no.65 of 2005 with a prayer that a decree of declaration passed

declaring defendant as liable and bound to execute the registered sale

deed for the suit property under the specific performance of contract

under Specific Relief Act.

2

The plaintiff and defendant namely Harold Anand Kumar

Mundle have entered into an agreement on 02.06.2003 of sale which is

admitted by the petitioner/appellant in his written statement at para-

12 and he has also agreed to execute the sale deed in the name of the

plaintiff without permission being taken from the trial Court and

during pendency of the suit, the respondent no.2 has executed and

registered a sale deed in favour of the appellant of Title Appeal No.20

of 2018.

The decree holder has filed an execution case being Execution

Case No.01 of 2018. The plaintiff/judgment debtor/appellant has filed

a petition under Order 41 Rule 5 on 09.07.2017 as also the

supplementary petition on 24.04.2019 stating therein that the appellant

since has preferred an appeal against the judgment and decree dated

23.02.2018 on 12.03.2018 passed in Title Suit No.65 of 2005 and as such,

the prayer for grant of ad-interim stay has been sought for but the

same has been rejected vide impugned order, therefore, the same is

under challenge in this writ petition.

7.

Mr. Rahul Kr. Gupta, assisted by Mr. S.R. Soren, learned counsel

for the petitioner has submitted by referring to the scope of Order 41

Rule 5 of the CPC which has been incorporated under the statute for

stay of execution, if the Court is satisfied that substantial loss may

result to the party, applying for stay of execution, unless the order is

made, application has been made without unreasonable delay and the

security has been given by the applicant for due performance of such

decree or order as may ultimately be binding upon him and according

to the petitioner all three conditions as provided under the said

provision, is available but even then the petition has been rejected.

Further submission has been made that the petitioner has got

prima-facie case as also balance of convenience lies in his favour and if

ad-interim stay would not be passed, he will suffer irreparable loss.

8.

According to the petitioner, he