IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1870 of 2009 PIYARIYA DEVI wife of late Nathun Yadav, resident of village + P.O. Balipaker, P.S. Paliganj, District Patna… …Defendant no. 5-Defendant 2nd Party-Judgment Debtor/Petitioner Versus 1. THE STATE OF BIHAR, through Collector at Patna Collectorate, P.S. Gandhi Maidan, Patna, 2. Collector, Patna at Collectorate, P.S. Gandhi Maidan, District Patna, 3. Sub-Divisional Magistrate, Paliganj, District Patna, 4. Circle Officer, Paliganj, at Paliganj, District Patna.. …Defendant Ist Party-Judgment Debtor/Opposite parties, 5. Ajay Kumar Sharma son of late Munna Sharma, resident of village + P.O. Balipaker, P.S. Paliganj, District Patna… ..Plaintiff-Decree Holder/Opposite Party.. Opposite Parties. For the Petitioner: Mr. Dronacharya, Advocate For the State : Mr. A.K. Jha, GA 2. For Opp.Party No.5: Mr. P.N. Shahi, Advocate ----------- 5 18.01.2010 Heard learned counsel for the petitioner, the State and opposite party no. 5. This civil revision is directed against the order dated 12.10.2009 passed by the Munsif, Danapur in Execution Case No. 7/09, whereby the prayer of the defendant-judgment debtor-petitioner for staying the execution proceeding till the disposal of Miscellaneous Case No. 18 of 2009 has been refused by the concerned court. Factual matrix of the case is as follows: 2 Eviction Suit No. 20 of 2008 was filed for declaration of the homestead purchas issued in favour of the petitioners to be void ab initio, without jurisdiction and not binding upon the plaintiff. Further prayer was for passing a decree of eviction against the defendant 2nd party from the schedule II premises. The suit was decreed ex parte in favour of the plaintiff. Decree was put to execution by filing Execution Case No. 7 of 2009. However, the defendant-judgment debtor-petitioner had also filed Miscellaneous Case No. 18 of 2009 for setting aside the ex parte decree on the grounds mentioned therein. Thus, a prayer had been made for stay of the execution case till the disposal of the aforesaid miscellaneous case, which had already been admitted by the concerned court. However, the court concerned had rejected the prayer. Learned counsel for the petitioner submitted that the court was fully competent to pass an order of stay in the interest of justice, as the decree was ex parte and a proceeding has already been initiated by the petitioner for setting aside the same. The concerned court upon hearing the petitioner had already admitted the application for 3 setting aside the ex parte decree and issued notice upon the otherside. This is also an admitted position that the plaintiff-decree holder-opposite party no. 5 had also appeared before the concerned court. Thus, in that view of the matter, the court concerned ought to have stayed the matter pending disposal of the aforesaid miscellaneous case. Learned counsel appearing for the plaintiff- decree holder-opposite party submitted that the court concerned had rightly rejected the prayer, as there were sufficient grounds available on the record for passing such decree. However, this case is being disposed of without going into the merit of the cases of the respective parties in the following manner: The parties are directed to appear before the court concerned, which is in seisin of Miscellaneous Case No. 18 of 2009, which already stands admitted and is pending before the same court. The court below shall fix a date of hearing immediately after receipt/production of a copy of this order and decide the issue within three months thereafter. 4 In the meantime, the further proceeding in Execution Case No. 7 of 2009 shall remain stayed. This order has been passed in presence of all the parties, therefore, no fresh notice is required to be issued by the concerned court. With the aforesaid observation/direction, this Civil Revision is, accordingly, disposed of. SC ( Dr. Ravi Ranjan, J.)