IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12023 of 2011 Smt.Ram Kuer Devi & Ors. Versus Smt. Uma Devi ---------------------------------- O R D E R 04. 22.12.2011. 1. Heard the learned counsel, Mr. Alok Kumar Sinha No.1 on behalf of the petitioner and Mr. Prem Kumar Jha on behalf of the respondent. 2. This application under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 14.06.2011 passed by Munsif, Danapur in execution case No.07 of 2010 whereby the application filed by the decree-holder-respondent on 31.05.2011 has been allowed and the execution case No.07 of 2010 proceeded. 3. The learned counsel for the petitioner submitted that earlier the petitioner had filed C.W.J.C. NO.16670 of 2010 against the order passed by the executing Court in the said execution case. By terms of order dated 07.10.2010 (Annexure 6/1), this Court specifically directed that possession shall not be affected till further order passed by this Court or till the application for stay filed by the petitioner is disposed of by the lower appellate Court whichever is earlier. Subsequently, the said writ application was disposed of - 2 - on 06.05.2011 (Annexure-6) wherein it has been directed that the trial Court should decide the suit within two months and the order dated 07.10.2010 passed earlier shall stand merged in the order. According to the learned counsel, the appellate Court is not passing any order on the application of stay filed by the petitioner and also not disposing of the title appeal and in face of the above, orders the executing Court is proceeding with the execution case and by the impugned order, the Court below has directed that the execution case shall proceed and, therefore, the said order passed by the executing Court be set aside and the further proceeding in execution case be stayed. 4. On the other hand, the learned counsel for the respondent submitted that the petitioner filed the appeal and stay application in the appeal before the lower appellate Court and after obtaining stay order by this Court on 07.10.2010 in C.W.J.C. NO.16670 of 2010 is neither pressing the appeal nor pressing the stay application because his purpose has been served and is giving pressure to the executing Court for staying the further proceeding in execution case. 5. It appears that the plaintiff-respondent filed title suit No.63 of 1986 against the petitioner for setting aside Judgment and Decree passed in title appeal No.47 of 1980 passed by Addl. Sub Judge, Patna and - 3 - Judgment and Decree dated 04.03.2005 passed by this Court in Second appeal No.627 of 1981 alleging that the said decrees have been obtained on the basis of forged document. The said suit was decreed on 03.05.2010. For executing the decree, the decree holder filed execution case No.07 of 2010. The defendant filed title appeal No.50 of 2010. In that appeal, stay application has also been filed on 23.08.2010 praying therein to stay execution case No.07 of 2010. Because there was no stay the executing Court was proceeding to execute the decree in execution case No.07 of 2010, the petitioners then filed the aforesaid writ applications before the High Court. As stated above, the orders were passed by this Court as contained in Annexure 6 and 6/A. 6. From perusal of the writ application, it appears that the petitioner nowhere stayed that he pressed his stay application before lower appellate Court or he prayed for hearing the appeal at an early date. It is not also stated that whether the appeal is ready for hearing or not. The learned counsel for the respondent submitted that because the petitioner obtained the stay order by this Court, the petitioner never pressed the stay application before the appellate Court. In view of the above facts, it is admitted fact that no order of stay has been passed by the appellate - 4 - Court. This Court while disposing of the writ applications in Annexure-6 directed to dispose of the suit within two months. Admittedly, the suit was not pending at that time and, therefore, there is some typing mistake in the ordersheet. The petitioner intentionally did not get it corrected and, therefore, in fact now there is no order directing the appellate Court to dispose of the appeal. It appears that taking the advantage of the stay order passed by this Court, the petitioner is neither pressing the stay application nor the appeal before the appellate Court and the application filed by the petitioner on 23.08.2010 is still pending for disposal. In view of the above conduct of the petitioner, in my opinion, she is not entitled for any relief in supervisory jurisdiction. So far the impugned order is concerned, the learned Court below after considering all the above facts has rightly refused to stay further proceeding in the execution case. 7. However, considering the fact that according to the petitioner they are residing in a house situated over part of the suit property, the petitioners are hereby directed to press their stay application before the lower appellate Court in Title Appeal No.50 of 2010 within two weeks after X-mas holiday. The petitioners shall also produce a copy of this order before the appellate Court. If the petitioners will press the stay - 5 - application, the lower appellate Court shall pass necessary order within one week from the date of pressing the stay application according to law. 8. The further proceeding in execution case No.07 of 2010 shall remain stayed till 31st of January, 2012 only. If within the above said period, the stay application is not pressed by the petitioner, the appellate Court shall dismiss the stay application as not pressed and then the executing Court shall proceed with the execution case. 9. With this observation, this writ application is disposed of. Patna High Court, Patna The 22ndday of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)