IN THE HIGH COURT OF JUDICATURE AT PATNA

C.R. No.1899 of 2008

IQUBAL BARMAKI @ EKBAL BARAMAKI

Versus

PAWAN KUMAR & ANR

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2

18/11/2008

Heard counsel for the petitioner

and counsel for opposite party no.1.

By

the

impugned

order

dated

12.9.2008 the court below in miscellaneous

case filed by the petitioner has refused

to

stay

the

further

proceeding

of

Execution Case No. 7 of 2007 on the ground

that the said execution case was filed

against

Jauhar

Barmaki,

the

judgment

debtor-opposite party no.2 and not against

the petitioner who is own brother of

Jauhar Barmaki. The court below has also

taken

into

account

the

undertaking

recorded in the order of this Court dated

11.12.2007 in C.R. No. 861 of 2007 which

was directed against the judgment and

decree of eviction passed against the

aforesaid Jauhar Barmaki, wherein this

Court have passed the following order:-

“After hearing the parties,

this court finds no illegality or

impropriety in the impugned order

so as to warrant any interference.

Since the petitioner-tenant

has been running a shop in the

premises for a long number of

years a plea has been advanced

that

some

reasonable

time

be

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granted to the petitioner for

vacating

the

suit

premises.

Learned counsel for the landlord

opposite party has no objection to

fixing a reasonable time for the

said purpose. After hearing the

parties and with their consent six

months time is fixed during which

the plaintiff opposite party shall

not take any coercive step for

eviction of the petitioner-tenant

who undertakes to vacate the suit

premises by the ends of six months

from today. It goes without saying

that tenant shall continue to pay

the

rent

etc.

as

per

past

practice. The revision petition is

disposed of.”

It appears that instead of handing

over possession within a period of six

months

as

undertaken

initially

Jauhar

Barmaki

took

objection

before

the

Executing Court as is recorded in the

order dated 8.8.2008 that his brother has

filed Misc. Case No. 6 of 2008 and as such

the execution case should be stayed till

its disposal. It definitely was an act of

defiance on the part of brother of the

petitioner and accordingly the Court

below having noted that it was not open

for Jauhar Barmaki to press for stay of

the execution case, had rejected such

prayer

of

the

judgment-debtor

Jauhar

Barmaki. In the said order it was also

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mentioned that the order to be passed for

staying the execution proceeding would be

in fact against the direction of the High

Court in C.R. No. 861 of 2007.

It is very significant to mention

here that when the Court having rejected

such prayer for stay of the execution

case,

had

taken

further

steps

for

effecting delivery of possession, this

petitioner, namely, Iqubal Barmaki had

filed application and made a prayer before

the court below in the execution case that

he had already moved the High Court for

stay as such an adjournment should be

granted. On this prayer, the court below

had,

even

though

reluctantly,

given

adjournment

to

the

petitioner

Iqubal

Barmaki to bring stay order from the High

Court.

The

petitioner

thereafter

on

29.8.2008 had filed another application in

Misc. Case No. 6 of 2008 that further

proceeding of Execution Case No. 7 of 2007

be stayed, in as much as, his application

for setting aside the decree on the ground

that he was the tenant and yet was not

made party in the suit was still pending.

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It is very shocking that now the

petitioner took a U-turn as with regard o

earlier stand taken in the execution case

and had communicated to the court that he

had not moved the High Court against the

order dated 8.8.2008 and in fact was

advised by the counsel at Patna not to do

so. Pressing this plea and claiming that

he was owner of the shop and was in

possession thereof, he came out with a

p