Petitioners challenged an execution order. The court held that since the lower appellate court is seisin of the pending restoration application, it should dispose of it first while staying further execution proceedings.
Stayed further proceedings in Execution Case No.1/02 till disposal of the pending restoration application by the lower appellate court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P.(C) No.9978 of 2007
22.07.2015 Challenge is made to the order dated 19.7.2006 passed by the learned Civil Jud
ge (Jr. Divn.), Nimapara in Execution Case No.1/02 vide Annexure-2 whereby and whereunder the
learned trial court allowed the case and issued writ of delivery of possession of the suit lan
d.
The short facts of the case are that one Harsatan Bibi filed a suit for evicti
on, recovery of possession and realization of arrear rent against the predecessors of the peti
tioners in the court of learned Civil Judge (Jr. Divn.), Nimapara, which was registered as T.S
. No.37/312 of 84/94. The suit was decreed. The defendants filed Title Appeal No.95 of 1996 in
the court of learned District Judge, Puri. The appeal was transferred to the court of learned
Civil Judge (Sr. Divn.), Nimapara and renumbered as Title Appeal No.69/2000. The same was dis
missed for non-prosecution. An application was filed for restoration of the appeal, which was
registered as Misc. Case No.36/2002. The same was also dismissed. Thereafter, another applicat
ion was filed under Section 151 of C.P.C. to restore the said misc. case which was registered
as C.M.A. No.13 of 2006. During pendency of the aforesaid misc. case, an application was filed
by the judgment-debtor in the execution case to stay further proceedings of the Execution Cas
e No.1/02. The same having been rejected, the present writ petition is filed.
Heard learned counsel for the parties.
Learned counsel for the petitioners submits that since the lawyers abstained f
rom work, title appeal was dismissed for default. As the petitioner no.1, who was looking afte
r the case on behalf of the other petitioners, was ill and bed ridden, he could not instruct h
is counsel for which the application for restoration was also dismissed. He further submits th
at the petitioners were prosecuting the lis diligently and there were latches on their part. T
hey were prevented by sufficient cause in prosecuting the lis.
Per contra, learned counsel for the opposite parties submits that the appeal w
as dismissed for default due to non-prosecution. The application for restoration was also dism
issed for non-prosecution. The petitioners were not diligent in prosecuting the case. In view
of the same, the impugned order does not warrant interference of this Court.
Since the learned Civil Judge (Sr. Divn.), Nimapara is in seisin of the matter
, this Court refrains from delving into the aforesaid issue. Learned lower appellate court is
directed to dispose of the application for restoration as expeditiously as possible, preferabl
y within a period of three months from today. Till disposal of the same, further proceedings i
n Execution Case No.1/02 in the court of learned Civil Judge (Jr. Divn.), Nimapara shall remai
n stayed.
The order be communicated to the learned Civil Judge (Sr. Divn.), Nimapara.
.......
Dr.A.K.Rath, J.
2
1 issue framed by the court
Whether the impugned order in Execution Case No.1/02 warrant interference by this Court when the lower appellate court is seisin of the matter.
2 provisions across 2 enactments
Petitioners
Opposite Parties
Dr. A.K. Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court