IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10566 of 2010 1. RADHESHYAM JHA, S/O LATE JAI BHADRA JHA, 2. NAWAL KISHOR JHA @ NAWAL JHA, S/O LATE JAI BHADRAJHA, 3. SUJIT KR. JHA, S/O SHRI RADHA SHYAM JHA, ALL ARE R/O VILLAGE ATHARI, P.S. RUNNISAIDPUR, DISTRICT- SITAMARHI. …. DEFENDANTS-APPELLANTS-PETITIONERS. VERSUS 1. SHYAM SUNDAR JHA, 2. RAM SUNDAR JHA, 3. KRISHAN KUMAR JHA, 4. KAUSHAL KUMAR JHA, 5. RAM KUMAR JHA, 6. BRAJ KUMAR JHA, RESPONDENT NOS. 1 TO 6 SONS OF LATE UPENDRA JHA, 7. VARUN KUMAR JHA, S/O SHYAM SUNDAR JHA, 8. SHISHIR KUMAR JHA, S/O RAM SUNDAR JHA, 9. NISHKAR KR. JHA, S/O RAM SUNDAR JHA, 10. BHASKAR JHA, S/O KRISHNA KUMAR JHA, 11. KESHAV KUMAR JHA, S/O KAUSHAL KUMAR JHA, 12. AMRAVATI DEVI, W/O UPENDRA JHA, 13. SAKUNTAL DEVI, D/O UPENDRA JHA, ALL ARE R/O VILLAGE ATHARI, P.S.- RUNNISAIDPUR,DISTRICT- SITAMARHI. PLAINTIFFS-RESPONDENTS-RESPONDENTS 1ST SET. 14. MARKANDAY JHA, S/O LATE BALI BHADRA JHA @ BALBHADRA JHA, 15. ABHIMANYU JHA, S/O MARKANDAY JHA, 16. BUDHINATH JHA, S/O LATE JAI BADRA JHA, 17. AJIT JHA, S/O NAWAL KISHOR JHA 18. GOLU JHA, S/O NAWAL KISHOR JHA, 19. AMIT KUMAR JHA, S/O BUDHINATH JHA, 20. PASHUPATI DEVI, W/O HARINATH JHA, RESPONDENT NOS. 14 TO 20 ARE R/O VILLAGE ATHARI, P.S.- RUNNISAIDPUR,DISTRICT- SITAMARHI. 21. MITHILA DEVI, W/O MAHINDRA JHA, R/O VILLAGE THUMNA, P.S.- RUNNISAIDPUR,DISTRICT- SITAMARHI. 22. SHAIL DEVI, W/O SOGARATH MISHRA, R/O VILLAGE MADAN MADHOPUR,P.S.- RUNNISAIDPUR,DISTRICT- SITAMARHI. …DEFENDANTS-RESPONDENTS-RESPONDENTS 2ND SET. ----------- For the petitioners : Mr. S.K.Thakur, Advocate. For the respondents : Mr. Pushkar Narain Shahi, Advocate. ----- - 2 - 04/ 10.11.2010 Heard learned counsel for the defendants- appellants-petitioners as well as learned counsel for the plaintiffs-respondents-respondent nos.1 to 13 who have also filed a counter affidavit. 2. After some argument, learned counsel for the petitioners seeks permission to withdraw this writ petition with a liberty to file a title appeal against the final decree dated 06.01.2010 passed in F.D.No.01 of 2009 arising out of Partition Suit No.05 of 2001. 3. Considering the facts and circumstances of this case, this writ petition is disposed of as withdrawn with the aforesaid liberty. 4. However, if the petitioners file the aforesaid title appeal within fifteen days from today along with a copy of this order and an interlocutory application for condoning the delay, the court of appeal below shall consider the same in the light of the delay caused due to filing of the instant writ petition. 5. Learned counsel for the petitioners will also be at liberty to file an interlocutory application for stay of further proceeding of the execution case in the said title appeal which the lower appellate court shall decide on its own merit in accordance with law without being prejudiced by this order or the impugned order. However, while passing any such order, the learned court below shall also consider - 3 - the submissions made by learned counsel for the respondents with regard to position of the execution case and the merit of the appeal. Sunil (S. N. Hussain, J.)