IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (C) No.2888 of 2014

--------

Nand Lal Sharma, Son of late Rameshwar Lal Sharma, resident of Giridih

Tundi Road, PO: Giridih, P.S. Giridih, District: Giridih.

…… Petitioner

Versus

1. Raj Kumar Sharma

2. Santosh Kumar Sharma

3. Pawan Kumar Sharma

4. Ashok Kumar Sharma

All sons of late Jagdish Prasad Sharma, all residents of Giridih Tundi Road,

PO: Giridih, P.S. Giridih, District: Giridih.

…… Respondents

-------

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

-------

For the Petitioner

: Mr. Ayush Aditya, Advocate

For the Respondents

: Mr. Prakash Chandra, Advocate

----------------------------

12/Dated 05^th December, 2019

1. Heard Mr. Ayush Aditya, learned counsel appearing for the petitioner and

Mr. Prakash Chandra, learned counsel appearing for the respondents.

2. The petitioner has preferred this writ petition for quashing the order dated

04.06.2014 passed by the learned District Judge-III, Giridih in Title Appeal

No.1 of 2013 whereby and whereunder he has pleased to reject the petition

dated 05.03.2013 filed under Order XLI Rule 5 of the Code of Civil

Procedure, in which, a prayer was made for stay of further proceeding in

Execution Case No.5 of 2013.

3. Mr. Ayush Aditya, learned counsel appearing for the petitioner submits that

the plaintiff has filed the suit for partition being Partition Suit No.46 of

2004, which has been decreed up to the Hon’ble Supreme Court. After the

said decree in Partition Suit No.46 of 2004, final decree has been prepared.

After that the preliminary decree has been confirmed, and final decree has

been prepared in the year 2012. Against the said final decree, the title

appeal has been filed by the defendant-petitioner which is numbered as

Title Appeal No.1 of 2013. He further submits that the title appeal has been

preferred on several grounds as one of the ground with regard to the

objection raised by the defendant-petitioner. He further submits that it is

well settled that any objection in final decree can be decided in appeal and

as such the title appeal is pending it was required by the court below to stay

the execution proceeding.

4. To buttress his argument, Mr. Ayush Aditya, learned counsel for the

petitioner has relied upon the judgment passed by the Hon’ble Supreme

Court in the case of Mool Chand Yadav & Anr. Vrs. Raza Buland Sugar

Company Limited, Rampur & Ors. reported in (1982)3 SCC 484 wherein

at paragraph 4 which is quoted herein below:

4. We heard Mr S.N. Kacker, learned counsel for

the appellants, and the respondents appeared by Caveat

through Mr Manoj Swarup, Advocate. We are not inclined

to examine any contention on merits at present, but we

would like to take notice of the emerging situation if the

operation of the order under appeal is not suspended

during the pendency of the appeal. If the FAFO is allowed

obviously Mool Chand Yadav would be entitled to

continue in possession. Now, if the order is not suspended

in order to avoid any action in contempt pending the

appeal, Mool Chand Yadav would have to vacate the room

and hand over the possession to the respondents in

obedience to the Court’s order. We are in full agreement

with Mr Manoj Swarup, learned Advocate for

respondents, that the Court’s order cannot be flouted and

even a covert disrespect to Court’s order cannot be

tolerated. But if orders are challenged and the appeals are

pending, one cannot permit a swinging pendulum

continuously taking place during the pendency of the

appeal. Mr Manoj Swarup may be wholly right in

submitting that there is intentional flouting of the Court’s

order. We are not interdicting that finding. But judicial

approach requires that during the pendency of the appeal

the operation of an order having serious civil

consequences must be suspended. More so when appeal

is admitted. Previous history of litigation cannot be

ov