IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1954 of 2006 MD.KAYUM @ ABDUL KAYUM & ANR Versus MD.ISHA & ANR With C.R. No.1760 of 2006 MD.KAYUM @ ABDUL KAYUM & ANR Versus MD.ISHA & ANR ----------- For the petitioners :- Mr. Birendra Prasad Verma, Sr. Advocate Mr. Mritunjaya Kumar Gautam, Advocate Mr. Yogendra Kumar, Advocate Mr. R.N. Ray, Advocate Mr. Manish Kumar, Advocate For the opposite parties :- Mr. Prabhash Ranjan, Advocate Mr. Ashok Kumar Prasad, Advocate *********** 6 21.10.2008 Heard counsel for the parties in both the cases. The petitioner in C.R. No. 1760 of 2006 are aggrieved by the order of the lower appellate Court dated 23rd August, 2006 affirming the order of the trial Court dated 18.3.1999 rejecting their prayer for restoration of a suit in terms of Order IX Rule 13 C.P.C. After some arguments, parties have agreed that the interest of justice would be better served if the suit is decided on merit and accordingly, with the consent of both the parties the two impugned orders dated 18.3.1999 as affirmed in order of lower appellate court dated 23.8.2006 are set aside and the matter is remitted back to the trial Court which will now dispose of the Title Suit No. 20 of 1993 within a period of six months from the date of receipt/production of a copy of this order. It - 2 - is made clear that the plaintiffs have already adduced evidence and therefore they would be only required to produce their witness for cross-examination by the defendants-petitioners. The defendants-petitioners would also ensure that cross examination of the witnesses of plaintiff and their own evidence both oral and documentary is completed as early as possible but in no case later than four and half months from the date of receipt/production of a copy of this order, leaving next 15 days for completion of arguments are completed in next 15 days and another 30 days for delivery of judgment. In C.R.No.1954 of 2006 the petitioners have assailed the order of the Court below dated 24.8.2006 whereby and whereunder order of the delivery of possession of the suit property effected on 11.7.2006 to the plaintiff-opposite parties, during the pendency of the appeal filed by them, has been refused to be recalled. It is true that in terms of interim order passed on 25.1.2000 by the lower appellate Court, there was no occasion for the Court below, the Executing Court, to pass an order for directing delivery of possession to the plaintiff-opposite parties as was done by it on 11.7.2006 and in normal circumstances this Court would have easily set aside such impugned order being in violation of the Court but taking subsequent events into account that - 3 - such interim order dated 25.01.2000 had already merged with the final appellate order dated 23rd August 2006 and the plaintiffs-opposite parties have been in possession of the suit property by virtue of the delivery of possession effected on 11.7.2006 this Court would not direct for restoration of possession of the suit property to the defendant-petitioners specially when the suit as directed above is now to be decided afresh. This Court would therefore direct both the parties to maintain status quo as existing today in respect of the suit property till the disposal of the Title Suit No. 20 of 1993. It is however, made clear that such suit property would remain in possession of the plaintiff-opposite parties only by way of custodia-legis and in the event the suit of the plaintiffs-opposite parties is dismissed, they will be under bound obligation to handover the same to the defendant-petitioners as it was delivered to them (plaintiffs) on 11.7.2006 in clear defiance of interim order of the appellate Court dated 25.1.2006. If the plaintiffs do not handover possession of the suit property to the defendant-petitioners voluntarily within a period of one month of the judgment dismissing the suit, the court which had got the delivery of possession effected to the plaintiff by an order dated 11.7.2006, would see to it that the same is restored to the petitioners, in keeping with - 4 - the spirit of Section 144 of the Code of Civil Procedure and that too positively and punctually within next two months of the filing of such an application by the petitioners. With the aforementioned observations and directions both the Civil Revision applications are disposed of. Bibhash (Mihir Kumar Jha, J.)