IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15330 of 2011 Sunil Kumar Versus Krishna Gopal ---------------------------------- 07. 18.11.2011 The learned counsel appearing on behalf of the petitioner submitted that the eviction suit filed by the plaintiff-respondent being eviction suit No.4 of 2006 on the ground of personal necessity and default has already been decreed and against the decree, the petitioner has filed title appeal No.3 of 2011 before the District Judge, Bhojpur at Ara. After decree, the plaintiff-respondent filed execution case No.1 of 2011 which is pending before the Court of execution Munsif, Ara. The petitioner filed application before the executing Court praying for stay of execution case during the pendency of the appeal. The learned counsel for the petitioner submitted that according to the instruction of his client, no stay application under Order 41 Rule 5 C.P.C. has been filed before the appellate Court. From perusal of the impugned order, it appears that the learned Court below rejected the application filed by the petitioner on the ground that the legality or otherwise or merits of the case - 2 - cannot be decided by the executing Court and, therefore, rejected the same. In view of the above facts and circumstances of the case, I find no reason to interfere with the impugned order. However, if so advised, the petitioner may approach the appellate Court by filing appropriate application if not already filed. In such circumstances, the appellate Court shall proceed to decide the same according to law. With this observation, this writ application is dismissed. Sanjeev/- (Mungeshwar Sahoo, J.)