IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11506 of 2010 1. MOST. GANGA DEVI W/O LATE ROHIT PASWAN 2. RAJ KUMAR PASWAN S/O LATE ROHIT PASWAN (ORIGINALLY FATHER OF PETITIONER NO.2 LATE ROHIT PASWAN, AND OTHERS WERE DEF. IN T.EX-28/82 AND GRAND FATHER OF PETITIONER NO.2 WAS DEFN. IN T.S. NO.438/64) BOTH R/O VILL.- KEOTA, P.S.- DALSINGSARAI, DISTT.- SAMASTIPUR ………….PETITIONERS VERSUS 1. MITHILESH KUMAR CHAUDHARY S/O LATE CHANDRA SHEKHAR PRASAD CHAUDHARY, R/O VILL.- KEOTA, P.S.- DALSINGSARAI, DISTT. SAMASTIPUR( ORIGINALLY GRAND FATHER WAS PLAINTIFF IN T.S. NO.138/64 NO FATHER WAS PETITIONER IN T.EX-28/82). 2. THE STATE OF BIHAR THROUGH THE DISTRICT MAGISTRATE, SAMASTIPUR ……………..RESPONDENTS. For the petitioners : M/s V. Nath, Mukesh Kumar No.3 and Ashok Kumar , Advocates. For the respondents : None ----------- 02/ 08.09.2010 Heard learned counsel for the petitioners. This writ petition has been filed by the petitioners challenging order dated 21.06.2010 (Annexure-3) by which Munsif, Dalsingsarai has vacated his earlier order of stay dated 08.08.1983 passed in Execution Case No.28 of 1982. The matter arises out of Title Suit No.138 of 1964 filed by respondent no.1 for declaration of title and recovery of possession against the defendant-petitioner, but the said suit was decreed ex-parte against the defendant-petitioner. Thereafter Miscellaneous Case No.29 of 1983 was filed by the petitioner under Order IX Rule 13 of the Code of Civil Procedure for setting aside the aforesaid ex-parte decree and the said miscellaneous case is pending before Munsif, Dalsingsarai. However, in the meantime, the plaintiff of the suit filed Execution Case No.28 of 1982 for execution of the ex-parte decree and in that execution - 2 - case an application under Order XXI Rule 29 of the Code of Civil Procedure was filed by the petitioner for stay of the execution case which was allowed by the executing court on 08.08.1983. It further transpires that subsequently on 07.02.2009 the plaintiff-decree holder filed an application for vacating the aforesaid order of stay and the said application has been allowed and the order of stay of has been vacated by the impugned order dated 21.06.2010. After some arguments learned counsel for the petitioners seeks permission to withdraw this writ petition with a liberty to file an application in the miscellaneous case for stay of further proceeding of the said execution case till the final disposal of the miscellaneous case. Considering the facts and circumstances of this case, this writ petition is disposed of as withdrawn with the aforesaid liberty. However, if the petitioner files an application for stay in the miscellaneous case within fifteen days from today along with a copy of this order, the court hearing the miscellaneous case shall decide the said matter within one month thereafter on its own merits in accordance with law. Till final order in stay matter is passed in the miscellaneous case within one month of the filing of the said application for stay, the proceeding of execution case shall remain stayed. It may be noted that if the petitioners fail to file an application for stay in the miscellaneous case within fifteen days from today, the aforesaid order of stay shall have no effect. Harish (S.N. Hussain, J.)