IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.968 of 2008 SANTOSH KUMAR & ORS Versus KALAWATI DEVI ----------- 4 18/7/2008 This matter was heard yesterday and this Court had indicated that there was no error in the impugned order refusing stay in the execution case purportedly for executing decree of specific performance of contract. Counsel for the petitioners has, however, taken a plea that the suit property is a residential house and in case decree is executed the appeal filed by the petitioner would become infructuous. This Court, however, had indicated that the decree holders could not have been deprived of the usufructs of the decree on the ground of mere pendency of the appeal and if the appellate court upon consideration of the materials had refused to stay the execution of decree of specific performance of contract under order XXXXI Rule 5 of the C.P.C, this Court sitting in revisional jurisdiction would not interfere with such discretion of the lower appellate court. On such observation, counsel for the petitioner in order to prove his bonafide had himself offered that the petitioners will pay a sum of Rs. 20,000/- (Twenty thousand) by way 2 of compensation to the opposite party-the decree holder in case their appeal is decided against them which would be to only offset the delay caused to the decree holder-opposite party in getting her decree executed on account of awaiting the result of the appeal of the petitioners as a result of staying the execution case. This Court, in the interest of justice, would accept such offer of the petitioners. It is, however, made clear that in case the said appeal is dismissed, the petitioners would pay a sum of Rs. 20,000/- which will be part of the decree to be executed by the decree holders. It is to be noted that a sum of Rs. 20,000/- has to be paid by the decree holder to the petitioner in terms of decree of trial court for getting specific performance of contract completed and therefore, the petitioners may choose to set off the amount of Rs. 20,000/- in the event their appeal is dismissed in course of execution of the decree and in that view of the matter the petitioners are directed to execute the sale deed in favour of the decree holder in that claiming payment from the opposite party and that too within 15 days of the dismissal of their appeal. 3 The appellate court in seisin with the appeal is also directed to take-up the hearing of Title Appeal No. 32 of 2007 expeditiously and dispose it of within a period of six months from the date of receipt/production of a copy of this order. During pendency of the appeal, proceedings of the Execution Case No. 2 of 2007 pending in the court of Sub.Judge-II, Buxar shall remain stayed. With the aforementioned observation this application is disposed of. ( Mihir Kumar Jha, J. ) Abhay Kumar