IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.568 of 2006 KHALDA KHATOON & ORS Versus MOST.BIGANI & ORS ----------- 2 10.7.2008 Heard Counsel for the petitioner. The petitioners are aggrieved by an order dated 28.12.2005 whereby and whereunder the application filed by the petitioners for staying the proceedings of the execution case in purported exercise of power under Order 21 Rule 26 of the Code of Civil Procedure has been rejected. Counsel for the petitioners contends that as a matter of fact in the year 1994, a partition suit was filed in which the petitioners’ interest were being initially protected by the defendant no.5, their father, who after filing of the written statement died on 25.9.1997. Counsel for the petitioners further submits that the defendant no. 5 was substituted through his all legal heirs including the petitioners but it is his case that the elder brother, the son of the defendant no.5 went in collusion with the plaintiffs and therefore the remaining heirs could not contest the suit and the suit was decided in their absence by an ex-parte judgment and decree dated 26.9.2001 as against which petitioners have filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the aforesaid ex-parte judgment and decree. The said Misc. Case No. 9/2002 being 2 still pending, the Court below in all fairness ought to have stayed the further proceeding of the execution case which was levied by the decree holders in the year 2003. Counsel for the petitioners however could not give any satisfactory answer as to what has happened in the pending miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure for all these six years save and except that after appearance of the opposite parties, the judgment holder, the same has been remained pending. He is also not aware as to what has happened after 28.12.2005 when the impugned order came to be passed in the execution case. In the opinion of this Court, the approach of the Court below in such a situation is holding that the execution case could not be kept pending endlessly awaiting the result of the Miscellaneous Case No. 9/2002 filed by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure cannot be held to be jurisdictional error specially when the petitioners themselves have not made any serious effort in last six years for the disposal of their miscellaneous case. The observations of the Court below that in case miscellaneous case of the petitioner is allowed and the suit is restored for rehearing it would be open to the petitioners to take recourse under Section 144 of the Code of Civil Procedure for restitution of the suit property can also have no exception in the eye of law much less vitiated by any 3 material irregularity. That being so, this Court would find no merit in this Civil Revision application and the same must be and is hereby accordingly dismissed. Rsh (Mihir Kumar Jha, J.)