Allowed

Kalawati Devi and Ors. v. Mostt. Champa Devi and Ors.

Patna HC19 Dec 2016CWJC/5971/2012

Case brief

AI extract

What is this about?

Three writ petitions under Article 227 challenging lower appellate court orders in an execution matter were decided. The High Court allowed stay of execution over 0.027 decimal of land claimed by petitioners, quashed refusal to allow amendment and additional evidence, and directed disposal of the pending appeal within four months.

What did the court decide?

C.W.J.C. Nos. 10094 of 2013, 5971 of 2012 and 19218 of 2010 allowed; impugned orders quashed; stay of execution granted over 0.027 decimal; disposal of appeal directed within four months.

Kalawati Devi and Ors. Vs Mostt. Champa Devi and Ors. — Execution and Attachment | Patna HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.10094 of 2013 IN C.R. 92 of 2007

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=========================================================== 1. Kalawati Devi W/O Late Ram Bilas Mandal 2. Satish Singh 3. Sumit Singh 4. Abinesh Kumar 5. Nikesh Kumar 6. Anjali Kumari all sons and D/O Late Rambilas Mandal all R/O Mohalla- Kaura Maidan, Near Chaiti Durga Asthan, P.S.- Kasim Bazar, P.O. & District- Munger

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1. Kailash Mandal son of late Deoki Mandal. 8. Nakuldeo Mandal S/O Late Laldhari Mandal both R/O Mohalla- Kaura Maidan, Near Chaiti Durga Asthan, P.S.- Kasim Bazar, P.O. & District- Munger .... .... Petitioner/s

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Versus

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1. Mostt. Champa Devi w/o Late Giridhar Prasad sharma 2. Ravi Sharma 3. Ritesh Sharma both son of Late Giridhar Prasad Sharma 4. Ruby Sharma d/o Late Giridhar Prasad Sharma All r/o Mohalla- Choabag, P.S.. Kasim Bazar, Dist.- Munger

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1. Sri Leela Devi W/O Late Ganesh Mandal 6. Phool Kumari 7. Sippu Kumar 8. Dabbu @ Uday Kumar 9. Jitni Kumari all Minor daughters and sons of Late Shiv Mandal, Under The Guardianship of her mother Lila Devi.

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1. Vijay Mandal Minor S/O Late Shiv Mandal under the guardianship of Md. Smteaz Ahmad, Advocate, G.A.L all R/O Mohalla- Betwah Bazar, Kaura Maidan, P.S.- Kasim Bazar, District- Munger

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1. Ram Khelawan Vishwakarma S/O Mangal Mistri 12. Mahendra Sharma 13. Manoj Sharma 14. Rajash Sharma 15. Ritu Kumari all sons and daughters of Ram Khelawan Vishwakarma all R/O

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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Mohalla- Maksurpur, P.S. Kasim Bazar P.O and District- Munger

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Bajrangi Sao

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Subadh Sao both S/O Shiv Nandan Sao R/O Mohalla- Kaura Maidan, P.S. Kotwali, District- Munger

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Gopal Sao

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Vodhan Sao S/O Late Bala Sah R/O Mohalla- Kaura Maidan, P.S.- Kasim Bazar, District - Munger

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Bidhan Sah @ Vijay Sah all S/O Late Balo Sah

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Meena Devi d/o Late Ram Prasad Pandey w/o Uma Shankar Tiwari All R/o Mohalla- Kaura Maidan P.S.- Kasim Bazar, Dist- Munger

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Pradeep Kumar Pandey S/O Late Ram Prasad Pandey

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Radha Devi d/o late Ram Prasad Pandey w/o Late Chandra Shekhar Dwivedi

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Razia Khatoon W/O Md. Sayaduddin

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Md. Moinul Ishalam S/O Abdul Hamid all R/O Mohalla- Kaura Maidan, P.S. Kasim Bazar & District- Munger.... .... Respondent/s

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with

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=========================================================== Civil Writ Jurisdiction Case No. 5971 of 2012 ===========================================================

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Kalawati Devi W/O Late Ram Bilas Mandal

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Satish Singh

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Sumit Singh

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Abinesh Kumar

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Nikesh Kumar

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Anjali Kumari all sons and D/O Late Rambilas Mandal all R/O Mohalla- Kaura Maidan, Near Chaiti Durga Asthan, P.S.- Kasim Bazar, P.O. & District- Munger

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Kailash Mandal son of late Deoki Mandal.

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Nakuldeo Mandal S/O Late Laldhari Mandal both R/O Mohalla- Kaura Maidan, Near Chaiti Durga Asthan, P.S.- Kasim Bazar, P.O. & District- Munger

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.... .... Petitioner/s

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Versus

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Mostt. Champa Devi w/o Late Giridhar Prasad sharma

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Ravi Sharma

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Ritesh Sharma both son of Late Giridhar Prasad Sharma

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Ruby Sharma d/o Late Giridhar Prasad Sharma All r/o Mohalla- Choabag,

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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Dist.- Munger

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Sri Leela Devi W/O Late Ganesh Mandal

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Phool Kumari

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Sippu Kumar

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Dabbu @ Uday Kumar all minors daughters and sons of late Ganesh Mandal under the guardianship of their mother Lila Devi.

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Jitni Kumari.

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Vijay Mandal both Minor son and daughter of late Shiv Mandal under the guardianship of Md. Emteaz Ahmad, Advocate, all resident of mohalla - Betwah Bazar, Kaura Maidan, P.S.- Kasim Bazar, District- Munger

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Ram Khelawan Vishwakarma S/O Mangal Mistri

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Mahendra Sharma

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Manoj Sharma

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Rajash Sharma

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Rita Kumari all sons and daughters of Ram Khelawan Vishwakarma all R/O Mohalla- Maksudpur, P.S. and District- Munger

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Bajrangi Sao

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Subadh Sao both S/O Shiv Nandan Sao R/O Mohalla- Kaura Maidan, P.S. Kotwali, District- Munger

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Gopal Sao

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Vodhan Sao S/O Late Bala Sah

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Bidhan Sah @ Vijay Sah all S/O Late Balo Sah all R/O Mohalla- Kaura Maidan, P.S.- Kasim Bazar, District - Munger

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Pradeep Kumar Pandey S/O Late Ram Prasad Pandey

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Radha Devi d/o late Ram Prasad Pandey w/o Late Chandra Shekhar Dwivedi

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Meena Devi d/o Late Ram Prasad Pandey w/o Uma Shankar Tiwari All R/o Mohalla- Kaura Maidan P.S.- Kasim Bazar, Dist- Munger

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Razia Khatoon W/O Md. Sayaduddin

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Md. Moinul Ishalam S/O Abdul Hamid all R/O Mohalla- Kaura Maidan, P.S. Kasim Bazar & District- Munger

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.... .... Respondent/s

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with

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=========================================================== Civil Writ Jurisdiction Case No. 19218 of 2010 =========================================================== 1. Kalwati Devi W/O Late Rambilash Mandal

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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Satish Singh 3. Sumeet Kumar Singh 4. Avinash Kumar 5. Nikesh Kumar all S/O Late Rambilash Mandal 6. Anjali Kumari D/O Late Rambilash Mandal 7. Kailash Mandal S/O Late Deoki Mandal 8. Nakul Deo Mandal S/O Late Laldhari Mandal all R/O Mohalla-Kaura, Maidan Near Chaitiurga Sthan, P.S.- Kadim Bazar, P.O. & Distt.- Munger .... .... Petitioner/s

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Versus

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Most. Chapma Devi W/o Late Gridhar Prasad Sharma 2. Ravi Sharma 3. Ritesh Sharma both son of Late Gridhar Prasad Sharma 4. Ruby Sharma d/o Late Gridhar Prasad Sharma All r/o Mohalla- Choabag, at present Mohalla- Kaura Maidan Maulsiri Talli, P.S.- Kasim Bazar, DistrictMunger

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Smt. Leela Devi W/O Late Ganesh Mandal 6. Phool Kumari 7. Sippu Kumar 8. Dabbu Kumar & Uday Kumar all Minor son and daughter of Late Ganeshi Mandal Under The Guardianship Of Her Mother Lila Devi

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Jitni Kumari 10. Vijay Mandal both Minor son and daughter of Late Shiv Mandal under the guardianship of Md. Emtiaz Ahmad Advocate R/O Mohalla-Behoan Bazar, Kasura Maidan, P.S.- Kasim Bazar, Dist.T.- Munger

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Ram Khelawan Vishwakarma S/O Mangal Mistri 12. Ramkhewan Vishwakarma son of Mangal Mistry. 13. Mahendra Sharma 14. Manoj Sharma 15. Rajesh Sharma 16. Rita Kumari all sons and daughter of Ram Khelawan Vishwakarma all R/O Mohalla-Maksudpur, P.S. & Distt.- Munger

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Bajrangi Sao 18. Subodh Dao S/O Shiv Nandan Sao R/O Mohalla-Kaura Maidan, P.S. & Distt.Munger

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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Gopal Sao

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Jodhan Sao

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Bidhan Sah @ Vijay Sah sons of Late Bala Sah all R/O Mohalla- Kaura Maidan, P..S- Kasim Bazar, Distt.- Munger

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Pradeep Kumar Pandey S/O Late Ram Prasad Pandey

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Radha Devi w/o Late Chandra Shekhar Dwivedi

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Meena Devi w/o- Uma Shankar Tiwari Both are daughters of Late Ram Prasad Pandey All resident of Mohalla- Kaura Maidan, Maulsiri Talli, P.S.- Kasim Bazar, District- Munger

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Razia Khatoon W/O Md. Sageduddin

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Md. Moinul Ishalam S/O Abdul Hamid both R/O Mohalla- Kaura Maidan, P..S. & Distt.- Munger

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Manoj Kumar Sinha S/O Charu Chandra Sinha

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Swarn Lata Devi W/O Charu Chandra Sinha

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Arbind Kumar @ Ravi

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Sudhir Chandra Sinha both S/O Charu Chandra Sinha

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Smt. Nutan Sinha W/O Ramesh Chandra Sinha

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Rohan Kumar Sinha

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Bahit Kumar Sinha

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Roshan Kumar Sinha Minor S/O Late Ramesh Kumar Sinha Under The Guardianship Of Next Friend Of Their Mother Smt. Nutan Sinha all R/O Mohalla- Kaura Maidan, P..S. & P.O. Distt.- Munger.

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.... .... Respondent/s

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=========================================================== Appearance : (In CWJC No. 10094 of 2013) For the Petitioner/s : Mr. Mr. Nirmal Kumar Sinha 3, Adv. For the Respondent/s : Mr. Ashok Kumar Kesri, Adv (In CWJC No. 5971 of 2012) For the Petitioner/s : Mr. Arun Kumar, Adv. For the Respondent/s : Mr. Ashok Kumar Kesri, Adv (In CWJC No. 19218 of 2010) For the Petitioner/s : Mr. Nirmal Kumar Sinha 3, Adv. For the Respondent/s : Mr. Ashok Kumar Kesri, Adv =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 19-12-2016

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Heard learned counsel for the petitioners and learned

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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counsel for the plaintiff-decree holder-respondents.

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Learned counsel for the petitioners has submitted that the plaintiff-decree holder-respondents are the only contesting parties in this application and other respondents are only the purchasers. Learned counsel for the parties have also agreed that other two applications i.e. C.W.J.C. No. 5971 of 2012 and C.W.J.C. No. 19218 of 2010 which have been filed against the order refusing the amendment in the memo of appeal and the order refusing to accept the additional evidence by the appellate court below may also be heard along with the present application as the matter relates to and arising out of the same proceeding i.e. Misc. Case No. 06 of 2001 under Order 21 Rule 97 C.P.C. filed by the petitioners. Accordingly, these two applications i.e. C.W.J.C. No. 5971 of 2012 and C.W.J.C. No. 19218 of 2010 have also been heard along with this application.

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The present application (C.W.J.C. No. 10094 of 2013) has been filed questioning the legal sustainability of the impugned order by which the learned appellate court below has rejected the prayer of the petitioners and refused to stay the further proceeding of the Execution Case No. 08 of 1998 filed by the plaintiff-decree holder.

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The facts in detail need no notice for the purpose of disposal of these three applications under Article 227 of the

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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Constitution of India in view of the stand taken by the learned counsel for the parties and suffice it to state that there is a decree for specific performance of contract passed in favour of the plaintiff-decree holder-respondents on 15.01.1998 with regard to 97 decimal of land in different plots. The plaintiff-decree holder-respondents have filed execution case no. 08 of 1998 for execution of the said decree. During the pendency of the said execution case, a petition under Order 21 Rule 97 C.P.C. was filed by the petitioners on the basis of which Misc. Case No. 06 of 2001 was initiated. However, after hearing the parties, the said miscellaneous case was dismissed by judgment and order dated 28.07.2006. Thereafter, the petitioners have filed Misc. Appeal No. 19 of 2006 before the appellate court below. In the said miscellaneous appeal, a petition was filed under Order 41 Rule 5 C.P.C. by the petitioners praying for stay of the further proceeding of the Execution Case No. 08 of 1998. However, by order dated 30.11.2006, the appellate court below has refused to grant the said prayer for stay as made by the petitioners. C.W.J.C. No. 10094 of 2013 has been filed against this order. C.W.J.C. No. 19218 of 2010 has been filed against the order by which the appellate court below has refused to accept the additional evidence as prayed by the petitioners and C.W.J.C. No. 5971 of 2012 has been filed against the order dated 28.11.2011 by which the appellate court below has

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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refused to allow the prayer for amendment in the memo of appeal.

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Mr. Verma, learned counsel for the plaintiff-decree holderrespondents, in all the three applications, has submitted that the claim of the petitioners is confined to 0.027 decimal of land out of plot no. 1389 Ka which has been fully described in schedule-A of the petition under Order 21 Rule 97 C.P.C. on the basis of which Misc. Case No. 06 of 2001 was initiated. It has been, however, pointed out that the decree was with respect to altogether 97 decimal of land in different plots and therefore, the grant of stay of further proceeding of the Execution Case No. 08 of 1998 at the instance of the petitioners could be utmost only with regard to the 0.027 decimal of land as claimed by the petitioners. It has, therefore, been submitted that as the appeal filed by the petitioners is pending before the appellate court below, the further proceeding of the execution case may be stayed only with regard to the property claimed by the petitioners as described in schedule-A of their petition.

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Learned counsel appearing on behalf of the petitioners has not disputed the aforesaid fact and has submitted that the petitioners have got their house over plot no. 1389 Ka over an area admeasuring 0.027 decimal of land fully described in schedule-A of the petition which was the basis for initiation of Misc. Case No. 06 of 2001 under Order 21 Rule 97 C.P.C. It has been also accepted by the learned counsel for the petitioners

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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that the house of the petitioners as standing over plot no. 1389 Ka is distinct and separable from other properties in the decree under execution. Learned counsel, therefore, has also accepted that the prayer for stay of the further proceeding of the execution case at the instance of the petitioners cannot be made for the other part of the decree under execution and can be confined only to 0.027 decimal of land in plot no. 1389 Ka as claimed by the petitioners.

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Learned counsel for the plaintiff-decree holder-respondents in other two applications i.e. C.W.J.C. No. 5971 of 2012 and C.W.J.C. No. 19218 of 2010 has further submitted that the prayers of the petitioners for adducing additional evidence and amendment in the memo of appeal which have been rejected by the order of the appellate court below as impugned in these two applications may be allowed but the appellate court below be directed to conclude and dispose of the appeal within a time frame as the matter has been pending since 1985 when the suit was filed.

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Learned counsel for the petitioners in response has also submitted that a direction be issued by this Court to the appellate court below for disposal of the appeal within a time frame, and has further submitted that the petitioners would cooperate in the disposal of the appeal within the time frame as fixed.

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After considering the submissions and the materials on

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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record including the impugned orders in the three applications under Article 227 of the Constitution of India, it is manifest that the claim of the petitioners as raised under Order 21 Rule 97 C.P.C. is only over an area of 0.027 decimal of plot no. 1389 Ka which is part of the decree under execution. Learned counsel for the petitioners has categorically submitted that the petitioners have no concern with regard to the other properties subject matter of the decree which are quite distinct and severable from the property as claimed by the petitioners. In view of the stand on behalf of the learned counsel for the parties as aforementioned, this Court finds that there is no legal impediment in allowing the three applications.

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Accordingly, the C.W.J.C. No. 10094 of 2013 is allowed and the impugned order dated 30.11.2006 is quashed to the extent it relates to 0.027 decimal of land of plot no. 1389 K as described by the petitioners in their petition under Order 21 Rule 97 C.P.C. and the proceeding of the Execution Case No. 08 of 1998 is directed to remain stayed with regard to the said property till disposal of the Misc. appeal No. 19 of 2006. Further in view of the stand on behalf of the plaintiffdecree holder-respondents in other two applications i.e. C.W.J.C. No. 5971 of 2012 and C.W.J.C. No. 19218 of 2010, both applications are also allowed and the respective impugned orders dated 28.11.2011 and dated 27.07.2010 are accordingly quashed. The prayers on behalf

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Patna High Court CWJC No.10094 of 2013 dt.19-12-2016

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of the petitioners for amendment in the memo of appeal and for adducing additional evidence by marking the gift deed dated 16.12.1967 as exhibit are also allowed.

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It is needless to say that in consequence to this order the Execution Case No. 08 of 1998 would proceed in accordance with law with regard to the remaining properties after separating the property as claimed by the petitioners in schedule-A of the petition which was the basis for initiation of Misc. Case No. 06 of 2001 as according to the learned counsel for the parties, the said property is distinct and severable.

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The appellate court below is further directed to conclude the hearing of the appeal and dispose it of in accordance with law within four months from the date of receipt/production of this order. Learned counsel for the parties have accepted before this Court that the petitioners and the plaintiff-decree holder-respondents would cooperate in disposal of the appeal within the aforesaid time frame.

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The three applications are, accordingly, allowed with the

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aforesaid directions.

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(V. Nath, J)

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Devendra/-

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Kalawati Devi and Ors. v. Mostt. Champa Devi and Ors.

Case brief

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Kalawati Devi and Ors. v. Mostt. Champa Devi and Ors.

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