Dismissed¶31

Smt. Asha Devi v. Devprasad Jaiswal

Chhattisgarh HC17 Mar 2026WP227/322/2026

Case brief

AI extract

What is this about?

Chhattisgarh High Court, Jashpur: stay of execution pending decision of Order 41 Rule 5 CPC application in first appeal; Order 21 Rule 26 CPC application rejected by executing Court; warrant of possession dated 26-02-2026; judgment-debtor bona fides/diligence; Civil Suit No.19A/2015 decree dated 29-06-2024 for vacant possession of Khasra No.129/8; Civil Appeal No.09/2024 before Second Additional District Judge, Kunkuri; writ petition dismissed.

What did the court decide?

Considering the pendency of the first appeal before the learned first appellate Court, this Court is not inclined to interfere with the impugned order dated 26-02-2026 passed by the learned executing Court. ¶30

Smt. Asha Devi Vs Devprasad Jaiswal — Chhattisgarh HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶31

Issue for consideration

Whether the writ Court should interfere with the executing Court's order dated 26-02-2026 (rejecting the judgment debtors' Order 21 Rule 26 CPC stay application and issuing warrant of possession) and stay the execution proceedings till decision of the judgment debtors' Order 41 Rule 5 CPC application pending before the learned first appellate Court.

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Court's answer

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Ratio / Principle

The ground for non-interference is that the first appeal lay pending since 13-08-2024 and the judgment debtors did not show bona fide efforts to get their Order 41 Rule 5 CPC application decided, pressing for stay of execution only after the possession warrant was issued in the execution proceeding.

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Detailed headnote1 paragraphs

Writ petition (WP227 No. 322 of 2026) by judgment debtors (Asha Devi and others) challenging the order dated 26-02-2026 of the learned executing Court passed in execution of the decree dated 29-06-2024 in Civil Suit No.19A/2015 (Civil Judge Class I, Kunkuri) for vacant possession of Khasra No.129/8, area 0.101 hectare/0.25 acre, whereby the judgment debtors' application under Order 21 Rule 26 CPC for stay of execution was rejected and 28-03-2026 was fixed for report of the possession warrant. Their first appeal (Civil Appeal No.09/2024) against the decree was pending before the Second Additional District Judge, Kunkuri since 13-08-2024, with an undecided Order 41 Rule 5 CPC stay application (decree holders' reply filed 29-01-2026; hearing fixed 27-03-2026). Held: as the judgment debtors showed no bona fide effort to get the stay application decided since 13-08-2024 and pressed for stay only after the possession warrant issued, the Court declined to interfere with the impugned order and dismissed the writ petition. (Ravindra Kumar Agrawal, J., 18-03-2026)

2026:CGHC:13065

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 322 of 2026

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1 - Smt. Asha Devi W/o Shri Basant Jaiswal Aged About 55 Years R/o VillageTapkara, Tahsil- Fasrabahar, District- Jashpur (Chhattisgarh)

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2 - Basant Jaiswal S/o Late Ramkunwar Jaiswal Aged About 60 Years R/o VillageTapkara, Tahsil- Fasrabahar, District- Jashpur (Chhattisgarh)

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3 - Vivek @ Bittu Jaiswal S/o Basant Jaiswal Aged About 32 Years R/o VillageTapkara, Tahsil- Fasrabahar, District- Jashpur (Chhattisgarh)

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... Petitioners

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versus

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1 - Devprasad Jaiswal S/o Late Goverdhan Prasad Aged About 61 Years R/o Village- Tapkara, Tahsil- Fasrabahar, District- Jashpur (Chhattisgarh)

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2 - Gabrela S/o Illiyas Aged About 64 Years R/o Village- Tapkara, TahsilFasrabahar, District- Jashpur (Chhattisgarh)

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3 - State of Chhattisgarh Through- The Collector, Jashpur, District- Jashpur (C.G.)

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... Respondents

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(Cause-title taken from Case Information System)

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For Petitioners : Mr. Hari Agrawal, Advocate. For State : Ms. Isha Jajodiya, Panel Lawyer. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board

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18-03-2026

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The present writ petition has been filed by the petitioners who are judgment debtors against whom the execution proceeding of the judgment and decree

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Digitally signed byMOHAMMEDAADIL KHAN Date: 2026.03.2718:19:25 +0530

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dated 29-06-2024 passed by the learned trial Court in Civil Suit No.19A/2015 is pending, warrant of possession has been issued vide order dated 26-022026 and the said order is under challenge in the present writ petition.

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Learned counsel for the petitioners would submit that though the petitioners are suffering from the judgment and decree dated 29-06-2024 passed by the learned Civil Judge Class I, Kunkuri, District Jashpur for vacant possession of the suit land Khasra No.129/8 area 0.101 hectare/0.25 acre situated at Patwari Halka No.07, Tahsil Farsabahar, District Jashpur. Against the said judgment and decree they have filed first appeal before the learned Second Additional District Judge, Kunkuri, District Jashpur vide Civil Appeal No.09/2024 which is pending for its consideration. Along with the first appeal they also made an application under Order 41 Rule 5 of the CPC (wrongly mentioned as Order 43 Rule 5 of the CPC) for staying the effect and execution of the impugned judgment and decree which is also pending since then. He would further submit that the decree holder have taken time to file the reply of the said application before the learned first appellate Court and after repeatedly taken time they have filed reply of the application of Order 41 Rule 5 of the CPC (wrongly mentioned as Order 43 Rule 5 of the CPC) on 29-01-2026 and the case was adjourned for hearing on the said application of the appellants/judgment debtors. He would also submit that at one side the decree holders taken time to file reply of the stay application of the judgment debtors, on the other side they were prosecuting the execution proceeding before the learned trial Court of the said judgment and decree dated 29-062024.

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In the execution proceeding on 26-02-2026 the judgment debtors/petitioners made an application under Order 21 Rule 26 of the CPC for staying the execution proceeding so as to enable the judgment debtors to obtain any interim order of stay from the appellate Court and till then the execution

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proceeding may be stayed. However, the said application has been rejected by learned executing court and the case has been fixed for 28-03-2026 for report of the possession warrant. He would further submit that in the first appeal pending before the learned Second Additional District Judge Kunkuri, District Jashpur the date is fixed as 27-03-2026. He would further submit that on 25-02-2026 the date was fixed before the learned first appellate Court in the appeal and on the very next day he moved his application before the learned executing Court for staying the decree. However, at present the date of hearing in the first appeal is given as 27-03-2026, whereas, in the executing Court the date for report on the possession warrant is given as 2803-2026, therefore, the execution proceeding pending before the learned executing Court may be stayed till the decision of his application under Order 41 Rule 5 of the CPC pending before the learned first appellate Court.

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I have heard learned counsel for the petitioners and perused the material annexed with the petition.

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Undisputedly the petitioners are suffering from a decree of vacant possession of the subject land, the said decree was passed on 29-06-2024 and the challenge made against that judgment and decree by the petitioners/judgment debtors is pending before the learned Second Additional District Judge Kunkuri, District Jashpur from 13-08-2024 in which the decree holders made their appearance on 04-12-2024 and for one or other reason and also for appearance of other parties the hearing of the appeal was adjourned from time to time. It transpires from the order sheets annexed with the writ petition (Annexure – P/4) that except for filing of the application along with the appeal, the petitioners have not made efforts to get their application decided or raised any objection in adjournment of the proceeding. On 17-122025 the counsel appearing for the appellants draw attention of the Court about pendency of the application filed under Order 41 Rule 5 of the CPC

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before the learned first appellate Court and then the decree holders sought time to file reply and ultimately the reply has been filed on 29-01-2026. Thereafter, the case was fixed for 25-02-2026 and ultimately for 27-03-2026. The first appeal filed by the judgment debtor is pending since 13-08-2024 for its consideration on merits as well as consideration on the application under Order 41 Rule 5 of the CPC and the execution proceeding is also pending before the learned trial Court which is prosecuting by the decree holders, in which also the judgment debtors had made their appearance.

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Be that as it may, since the first appeal is already pending for its consideration, the judgment debtors have not shown their bonafidy to get their application decided since from 13-08-2024 in the first appeal pending before the learned Second Additional District Judge, Kunkuri, District Jashpur and it is only when in the execution proceeding the possession warrant was issued, the petitioners started pressing their application for staying the execution proceedings. Considering pendency of the first appeal by the judgment debtors before the learned first appellate Court, this court is not inclined to interfere with the impugned order dated 26-02-2026 passed by the learned executing Court.

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7. Accordingly, the writ petition is dismissed.

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Sd/-

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(Ravindra Kumar Agrawal) Judge

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Aadil

Procedural history

How this case reached the court

AI extract

Order under challenge
Impugned order dated 26-02-2026 passed by the learned executing Court, by which warrant of possession was issued and the judgment debtors' application under Order 21 Rule 26 CPC for stay of execution was rejected, under challenge in this writ petition.¶30
learned executing Court · 26-02-2026
Prior proceeding
Execution proceeding of the judgment and decree dated 29-06-2024 passed by the learned trial Court in Civil Suit No.19A/2015 is pending; warrant of possession issued vide order dated 26-02-2026 (printed as '26-022026'), and that order is under challenge in the present writ petition.¶21
Prior proceeding
The decree under execution is for vacant possession of suit land Khasra No.129/8, area 0.101 hectare/0.25 acre, situated at Patwari Halka No.07, Tahsil Farsabahar, District Jashpur.¶22
Prior proceeding
Judgment debtors filed first appeal before the learned Second Additional District Judge, Kunkuri, District Jashpur vide Civil Appeal No.09/2024, pending consideration.¶22
Prior proceeding
First appeal pending since 13-08-2024; decree holders made appearance on 04-12-2024 and the hearing was adjourned from time to time.¶27
Prior proceeding
Along with the first appeal the judgment debtors filed an application under Order 41 Rule 5 CPC (wrongly mentioned as Order 43 Rule 5 CPC) for staying effect and execution of the decree; it remained pending.¶22
Prior proceeding
After the appellants' counsel drew attention on 17-12-2025 (printed '17-122025') to the pending Order 41 Rule 5 CPC application, the decree holders took repeated time and filed reply on 29-01-2026; the matter was then fixed for 25-02-2026 and ultimately for 27-03-2026.¶29
Prior proceeding
In the execution proceeding, on 26-02-2026 the judgment debtors applied under Order 21 Rule 26 CPC for stay so as to obtain interim relief from the appellate Court; the learned executing Court rejected the application and fixed 28-03-2026 for report of the possession warrant, while the first-appeal hearing stood fixed for 27-03-2026.¶25

Smt. Asha Devi v. Devprasad Jaiswal

Case brief

What is this about?

What did the court decide?

Smt. Asha Devi v. Devprasad Jaiswal

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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