IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2048 of 2008 MOSTT. BAKRIDAN NISHA & ORS Versus KANIJ FATMA & ORS ----------- 2 12/12/2008 Heard Mr. Anil Kumar Mukund, learned counsel for the petitioners. The concern of the court below in refusing the stay of the execution proceedings arising out of a decree in the eviction suit which has been affirmed up to this Court, has to be fully appreciated, but then the issue still remains that why Title Suit No. 93 of 2004 has been kept pending for such a long period and why the earlier order dated 5.2.2007 of maintaining status-quo and restraining the defendants-opposite parties of Title Suit No. 93 of 2004 from dispossessing the petitioners from the suit premises should have been vacated and/or modified as has been done by the impugned order. Normally, in an execution proceeding and that too arising out of a decree passed in an eviction suit there would not arise such a situation as has been created in this case, but then every 2 case has its own striking and distinguishing feature. In the present case petitioners have come out with a plea that they are not only residing in the house in question which was sought to be vacated but they have also a valid right for being in possession of the suit house. The petitioners however being not parties to the earlier eviction suit, having got knowledge of the decree passed in the eviction suit concerning their premises under occupation had filed their own independent suit, i.e, Title Suit No. 93 of 2004. The concerned Court after appreciating merits of the case of the petitioners had passed an order on 5.2.2007 by directing that the petitioners would not be dispossessed in any other manner, save and except, in the manner prescribed in accordance with law. There would be no difficulty for this court in holding that the execution proceeding is a perfect remedy under law and therefore the said qualified interim order dated 5.2.2007 could not have by itself become impediment in executing the 3 decree passed in eviction suit. Nonetheless the petitioners have continued to remain in the suit premises on the basis of aforementioned stay order for more than twenty two months and if now they are sought to be evicted as an out come of the execution proceeding levied by the opposite parties they will be left with no shelter. Thus, concept of restitution under section 144 of the Code of Civil Procedure under the circumstances may prove to be wholly illusory and also against the settled principles of equity. In such a situation, interest of justice could have been served better if the court below in seisin with Title Suit No. 93 of 2004 could have taken up hearing of the aforesaid suit on day to day basis without giving any unnecessary adjournment to either of the parties. That having been not done, this court would direct the court below to dispose of Title Suit no. 93 of 2004 within a fixed time limit of six months from the date of receipt/production of a copy of this order. 4 Counsel for the petitioners has also given an undertaking that in case the aforesaid suit is dismissed, the petitioners will no longer deprive the decree holders opposite party of the eviction suit in getting possession of the house in question and infact would themselves voluntarily hand over vacant possession of the suit premises without awaiting result of any appeal and/or revision against the judgment and decree of the court below. That being so, the impugned order is set aside and this Civil Revision Application is allowed with the aforementioned observation and direction. (Mihir Kumar Jha, J.) Abhay Kumar