IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1899 of 2008 IQUBAL BARMAKI @ EKBAL BARAMAKI Versus PAWAN KUMAR & ANR ----------- 2 18/11/2008 Heard counsel for the petitioner and counsel for opposite party no.1. By the impugned order dated 12.9.2008 the court below in miscellaneous case filed by the petitioner has refused to stay the further proceeding of Execution Case No. 7 of 2007 on the ground that the said execution case was filed against Jauhar Barmaki, the judgment debtor-opposite party no.2 and not against the petitioner who is own brother of Jauhar Barmaki. The court below has also taken into account the undertaking recorded in the order of this Court dated 11.12.2007 in C.R. No. 861 of 2007 which was directed against the judgment and decree of eviction passed against the aforesaid Jauhar Barmaki, wherein this Court have passed the following order:- “After hearing the parties, this court finds no illegality or impropriety in the impugned order so as to warrant any interference. Since the petitioner-tenant has been running a shop in the premises for a long number of years a plea has been advanced that some reasonable time be 2 granted to the petitioner for vacating the suit premises. Learned counsel for the landlord opposite party has no objection to fixing a reasonable time for the said purpose. After hearing the parties and with their consent six months time is fixed during which the plaintiff opposite party shall not take any coercive step for eviction of the petitioner-tenant who undertakes to vacate the suit premises by the ends of six months from today. It goes without saying that tenant shall continue to pay the rent etc. as per past practice. The revision petition is disposed of.” It appears that instead of handing over possession within a period of six months as undertaken initially Jauhar Barmaki took objection before the Executing Court as is recorded in the order dated 8.8.2008 that his brother has filed Misc. Case No. 6 of 2008 and as such the execution case should be stayed till its disposal. It definitely was an act of defiance on the part of brother of the petitioner and accordingly the Court below having noted that it was not open for Jauhar Barmaki to press for stay of the execution case, had rejected such prayer of the judgment-debtor Jauhar Barmaki. In the said order it was also 3 mentioned that the order to be passed for staying the execution proceeding would be in fact against the direction of the High Court in C.R. No. 861 of 2007. It is very significant to mention here that when the Court having rejected such prayer for stay of the execution case, had taken further steps for effecting delivery of possession, this petitioner, namely, Iqubal Barmaki had filed application and made a prayer before the court below in the execution case that he had already moved the High Court for stay as such an adjournment should be granted. On this prayer, the court below had, even though reluctantly, given adjournment to the petitioner Iqubal Barmaki to bring stay order from the High Court. The petitioner thereafter on 29.8.2008 had filed another application in Misc. Case No. 6 of 2008 that further proceeding of Execution Case No. 7 of 2007 be stayed, in as much as, his application for setting aside the decree on the ground that he was the tenant and yet was not made party in the suit was still pending. 4 It is very shocking that now the petitioner took a U-turn as with regard o earlier stand taken in the execution case and had communicated to the court that he had not moved the High Court against the order dated 8.8.2008 and in fact was advised by the counsel at Patna not to do so. Pressing this plea and claiming that he was owner of the shop and was in possession thereof, he came out with a prayer for stay of the execution case in which as noted above the court below after rejecting the prayer of the judgment- debtor on 8.8.2008 had already taken steps for effecting delivery of possession. Mr.S.K.Mazumdar, learned Senior counsel appearing on behalf of the petitioner would submit that once miscellaneous case was pending and there was an expectation that the petitioner would be dispossessed on account of a decree in which he was not made a party, it was imperative on the part of the court below to have stayed further proceeding of execution case till disposal of the miscellaneous case. He would also submit 5 that notwithunderstanding rejection of prayer of the petitioner to stay the execution proceeding, when a separate prayer was made in the miscellaneous case the petitioner was not stopped from raising the same issue. Mr. Ganpati Trivedi, learned counsel appearing on behalf of the plaintiff, decree holder, opposite party submits that the whole efforts of the petitioner is to deprive the decree holder from getting the delivery of possession which as a matter of fact had to be delivered to him in view of undertaking given by the judgment-debtor within a period of six months, i.e, from the month of June, 2008. He has also invited attention of this Court towards findings recorded in the judgment and decree to show that not only the judgment-debtor, brother of the petitioner had made out a case of joint family business in which all the brothers having their interest, but out of four brothers three of them were examined as witness. He would therefore submit that the whole plea of the 6 petitioner that he has in possession of the premises in view of an earlier rent agreement whose period had been completed is fit to be rejected because admittedly the leave was in favour of the judgment- debtor and not in the name of the petitioner. He accordingly by relying on this admitted documents has made submissions that as a matter of fact the petitioner had nothing to do with the suit premises and his miscellaneous case was frivolous. In the opinion of this Court, whatever has been submitted by Mr. Ganpati Trivedi, learned counsel appearing on behalf of the opposite party would definitely lead to a prima-facie conclusion that the miscellaneous case filed by the petitioner was/is frivolous application, but than this Court would not like to make any further observation for the present, in as much as, said miscellaneous case has to be decided also on merits and therefore the only question which has to be now addressed at this stage is as to whether the execution case 7 and the delivery of possession should be stayed. It is not in doubt that the plaintiff, decree holder, opposite party has contested the eviction suit against the judgment debtor in whose name there was an existing lease and with whom a rent agreement was also subsisting, after expiry of the earlier rent agreement with the petitioner. At no point of time the brother of the petitioner, defendant in the suit and now judgment-debtor took such a plea that he was not owner of the shop or the same was not in his possession. On the other hand, it was the definite case of the judgment debtor there was a joint family business which was sought to be substantiated and extablished by leading evidence of three of his brothers. Prima- facie, there would be little scope for the petitioner to contend anything in this regard, save and except, that his all brothers were hostile to him and therefore had suppressed this aspect of the matter. However such aspects of the matter in fact is still not conclusive and is required to 8 be gone into by the court below. The question still remains, can this Court ignore two very important facts, namely, brother of the petitioner, judgment-debtor had given an undertaking to this Court and subsequently he taken a plea before the executing court that the execution proceeding should be stayed because his brother (petitioner) had filed a miscellaneous case. This would go to show that the brothers were/are in collusion and at the instance of the petitioner for avoiding the decree he had taken a plea against his an undertaking given to this Court. This however is not end of the matter. It is apparent that when such prayer of the petitioner- judgment debtor was rejected, the petitioner appeared in the execution case and had submitted that he had already moved this Court against the order dated 8.8.2008 rejecting prayer to stay the execution proceeding but thereafter took a complete contrary stand in the application which has been rejected by the court below. The plea, therefore which has been 9 noted and rejected by the court below in the impugned order is in keeping with and the order of the High Court for giving possession to the landlord in view of the undertaking given by the judgment-debtor. In that view of the matter, if the court below has rejected prayer of the petitioner for staying further proceeding of the execution case, such order in the peculiar facts of this case cannot be said to be suffering from any jurisdictional error. That being so, this Court would not find any merit in this application and accordingly, this application is dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar