The High Court held that the District Judge committed illegality by staying a title decree under Order 41 Rule 5 CPC without a pending execution case. The stay order was set aside and both petitions were allowed.
The order dated 28.01.2016 passed in Title Appeal No. 01 of 2016 staying the decree is set aside.
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.
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.543 of 2016
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Versus
Patna High Court C.Misc. No.543 of 2016 dt.28-11-2017
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.... .... Respondent/s
with
=========================================================== Civil Writ Jurisdiction Case No. 6510 of 2016 =========================================================== Nand Kishore Thakur .... .... Petitioner/s Versus Raju Thakur & Ors .... .... Respondent/s =========================================================== Appearance : (In C.Misc. No.543 of 2016) For the Appellant/s : Mr. Ajay Kumar For the Respondent/s : Mr. Madhav Roy (In CWJC No.6510 of 2016) For the Petitioner/s : Mr. Tara Nath Jha For the Respondent/s : Mr. Madhav Roy =========================================================== CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL JUDGMENT Date: 28-11-2017
Heard Mr. Tara Nath Jha and Ajay Kumar, the learned counsel for the petitioners, and Mr. Madhav Roy, the learned counsel for the respondents.
Civil Misc. No. 543 of 2016 and CWJC No. 6510 of 2016 are filed against the order dated 28.01.2016 passed in Title Appeal No. 01 of 2016 by which the learned District Judge stayed the judgement and decree passed in Title Suit No. 19 of 1982.
The learned counsel for the petitioners assailed the order on the ground that under Order 41 Rule 5 of the C.P.C. the learned appellate court cannot stay the judgement and decree and the provision is meant for staying the execution case filed for execution of decree. It is further
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submitted that Title Suit No. 19 of 1982 was filed for partition of suit property and the same was decreed but no execution case is filed. Some of the defendants filed Title Appeal No. 01 of 2016 and in the aforesaid Title Appeal one petition under Order 41 Rule 5 of the C.P.C. was filed. On such, the learned District Judge ordered for stay of judgement and decree although no execution case was pending on the date of order.
On the other hand, Mr. Madhav Roy, the learned counsel for the respondents, submits that even if no execution case was pending, the court has got inherent jurisdiction to stay the proceeding initiated in pursuance of judgement and decree, if the proceeding causes irreparable loss to the appellant. Of course, proceeding under Order 41 Rule 5 is not appropriate for the purpose but the court has got jurisdiction to stay the proceeding to avoid any further inconvenience or irreparable loss to a party. The learned counsel for the respondents placed heavy reliance on the judgement of this court reported in AIR 1921 328 (Nana Ojha v. Sarbhoo Dutt Ojha & Ors) . The learned counsel for the respondents also placed reliance upon another judgement of this court reported in AIR 1936 408 (Bengal Coal Co. Ltd. v. Brijdeo Narayan Singh) and submitted that respondents have filed another suit No. 21 of 1986 for setting aside the judgement and decree but I find that the contention of the learned counsel for the respondents is not acceptable and has got on substance.
Admittedly, Title Suit No. 19 of 1982 was decreed but no execution case was pending on the date of order. The defendants preferred appeal against the judgement and decree passed in Title Suit No. 19 of 1982
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bearing Title Appeal No. 01 of 2016 but neither the execution case nor any proceeding in pursuance of the judgement and decree passed in Title Suit No. 19 of 1982 is pending in the court of Sub-Judge, who decreed the suit. In the case of Nana Ojha (supra) a division bench of this court held that order 41 Rule 5 of the C.P.C. is meant for staying the execution case but if any proceeding which appears to be in cumbersome and incur heavy expenditure in pursuance of the preliminary decree is pending the court under inherent jurisdiction can stay the proceeding till disposal of the appeal.
Having considered the facts aforesaid, I find that the learned District Judge has committed illegality in staying the judgement and decree of the Title Suit No. 19 of 1982 on a petition filed under Order 41 Rule 5 of the C.P.C. without there being pendency of any proceeding or execution case.
Accordingly, the order dated 28.01.2016 passed in Title Appeal No. 01 of 2016 is set aside. Both the petitions are allowed.
(Prabhat Kumar Jha, J)
BKS/-
| AFR/NAFR | NAFR |
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| CAV DATE | N.A. |
| UploadingDate | 4.12.2017 |
| Transmission Date |
N.A. |
3 issues framed by the court
Whether Order 41 Rule 5 CPC permits staying a judgment and decree without a pending execution case.
Whether the District Judge committed illegality by staying the decree in the absence of an execution petition.
Whether the appellate court has inherent jurisdiction to stay proceedings incidental to a judgment without an execution case pending.
Colour shows how this judgement treated each authority
Nana Ojha v. Sarbhoo Dutt Ojha & OrsDistinguished¶56
AIR 1921 328 (Nana Ojha v. Sarbhoo Dutt Ojha & Ors) · Who else cites this
Bengal Coal Co. Ltd. v. Brijdeo Narayan SinghRelied on¶52
AIR 1936 408 (Bengal Coal Co. Ltd. v. Brijdeo Narayan Singh) · Who else cites this
1 provisions across 1 enactments
Sri Nath Thakur and Ors
Raju Thakur and Ors
Prabhat Kumar Jha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
