Sayab Ali and 4 Ors v. Upen Nath and 10 Ors. B

O R D E R

19.06.2023 Heard Mr. M. R. Adhikari, the learned counsel for the petitioners.

¶2The instant revision petition has been filed challenging the order dated 02.06.2023 passed in Petition No.506/2022 by the Executing Court Page No.# 3/4 in Title Execution Case No.40/2022. It appears from the records that vide the judgment and decree dated 18.02.2022 passed in Title Suit No.41/2017, the said suit was decreed thereby declaring the right, title and interest of the plaintiffs; granted a decree for recovery of possession of the suit land by evicting the defendants as well as a decree for permanent injunction was also issued.

¶3It reveals from the records that an application was filed by the defendants who are the petitioners herein under Order IX Rule 13 of the Code of Civil Procedure, 1908 read with Section 5 of the Limitation Act, 1963 for setting aside the judgment and decree dated 18.02.2022 on the grounds and reasons stated therein. It further reveals from the records that the plaintiffs who are respondents herein had filed the Execution Proceedings registered and numbered as Title Execution Case No.40/2022. During the pendency of the application for setting aside the judgment and decree dated 18.02.2022-Misc.(J) Case No.115/2023, the petitioners filed an application bearing No.506/2023 for stay of the Execution Proceedings till the disposal of the Misc.(J) Case No.115/2023. The learned Executing Court rejected the said application vide the order dated 02.06.2023 on the ground that the stay of the Execution Proceedings can only be granted by the Court before whom the Misc.(J) Case No.115/2023 was filed or by the Appellate Court or the Revisional Court. Under such circumstances, the petitioners, therefore, approached the learned Trial Court by filing a petition bearing No.1264/2023 for stay of the operation of the impugned judgment and decree dated 18.02.2022 passed in Title Suit No.41/2017 as well as Title Execution Case No.40/2022 till the disposal of Misc.(J) Case No.115/2023. In the said proceedings, the learned Trial Court vide the Page No.# 4/4 order dated 07.06.2023 had issued only notices thereby fixing 04.07.2023 for SR & Objection. The instant petition, as already noted herein above, has been filed challenging the order dated 02.06.2023 passed in Title Execution Case No.40/2022.

¶4This Court upon perusal of the order dated 02.06.2023 is of the opinion that no case is made out for interference under Article 227 of the Constitution in as much as the learned Executing Court was justified in passing the order dated 02.06.2023 and had exercised the jurisdiction in accordance with law.

¶5The learned counsel for the petitioners, however, submits that vide the order dated 17.06.2023, the learned Executing Court had directed the decree holders, i.e. the respondents herein to deposit the costs for police aid and has also issued the writ for delivery of possession.

¶6This Court is of the opinion that the petitioners would be well advised to file appropriate application before the learned Trial Court before whom Misc.(J) Case No.115/2023 is pending seeking urgent relief taking into account the order dated 17.06.2023.

¶7It is observed that upon such application so filed, the learned Trial Court shall pass appropriate order as it deems proper in accordance with law.

¶8With the above observation and direction, the instant petition stands disposed of. JUDGE Comparing Assistant

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