The appellate court erroneously imposed the cost of suit, leading to a stay of execution proceedings.

CORAM: HONOURABLE MR. JUSTICE KHATIM REZA ORAL ORDER

45 29-01-2026 Interlocutory Application No.3706 of 2019 Heard Mr. Raghib Ahsan, learned senior counsel assisted by Mr. Raj Nandan Prasad, learned counsel for the appellants and Mr. Shabbir Ahmad, learned counsel for the respondents.

2. This interlocutory application has been filed by the appellants under Order XLI Rule 5 of the Code of Civil Procedure for staying the further proceedings of Execution Case No.01 of 2008 pending in the Court of the Sub-Judge-III, Darbhanga.

3. This appeal was admitted for hearing on

16.09.2008. On 04.01.2010, while issuing notice to the respondent no.1 in I.A. No.3706 of 2009, further proceedings of Execution Case No.01 of 2008 was stayed. It appears that during pendency of this appeal, I.A. No.3706 of 2009 was dismissed for non-prosecution on 01.03.2011, which was restored by order dated 09.11.2017 passed in MJC No.1713 of 2016. Thereafter, vide order dated 02.09.2025, further proceedings of Execution Case No.01 of 2008 pending in the Curt of Sub-Judge-III, Darbhanga, was again stayed till further orders. Now, the interlocutory application has come for final order in the stay matter.

4. Learned senior counsel appearing for the appellants submits that the application for execution of decree dated 24.09.2005 i.e., for realization of rupees thirty six thousand as cost of the suit is illegal and arbitrary because the suit itself is valued at rupees thirty six thousand which is apparent from the decree of the trial Court as well as appellate Court. Learned senior counsel further submitted that in the last paragraph of the decree under appeal, cost of the original suit has wrongly been mentioned as rupees thirty six thousand to be paid by the respondents (appellants herein) to the appellants (respondents herein). Learned senior counsel submitted that the cost of the suit has been mentioned in the decree of the trial Court as Rs.409.65, whereas, the learned first appellate Court has erroneously mentioned the value of the suit i.e., rupees thirty six thousand as cost of the suit, which is error of the record.

5. On the other hand, learned counsel for the respondents submits that the appellate Court upon its discretion has imposed the cost of rupees thirty six thousand upon the appellants which is the discretion of the Court and cannot be interferred under Order XLI Rule 5 of the Code of Civil Procedure .

6. From the case records, it is clear that the suit valuation was rupees thirty six thousand and the cost of suit mentioned in the decree of the trial Court was Rs.409.65. The learned first appellate Court has wrongly mentioned the cost of the original suit as rupees thirty six thousand, which is error of the record.

7. Having regard to the facts and circumstances of the case and the averments made in the interlocutory application, same is allowed.

8. Further proceedings of Execution Case No.01 of

2008 pending in the Court of the Sub-Judge-III, Darbhanga, shall remain stayed till the disposal of this second appeal.

9. Interlocutory Application No.3706 of 2019 stands allowed.

(Khatim Reza, J)