JITENDRA KUMAR ALIAS JITTU Vs. KRISHANA DUTT SHARMA

JUDGEMENT

(1.) -Heard counsel for the petitioner and Sri Mithlesh Kumar Tiwari appearing for the respondents No. 1 and 2. Both the counsels have agreed that the writ petition be disposed of at this stage without inviting counter-affidavit. Learned counsel for the petitioners at the very outset has submitted that his prayer be confined only for quashing the order dated 21.4.2006, passed by the Additional District Judge, Bijnore, rejecting the application of the writ petitioner filed in the aid of appeal before the District Judge, Bijnore.

(2.) A Suit No. 393 of 1996 was filed by the respondents seeking a decree for permanent injunction and for cancellation of an agreement to sale deed dated 14.8.1996. The trial court vide its judgment and decree dated 6.4.2006 decreed the suit. The relief of permanent injunction was granted in favour of the plaintiff with regard to disputed shops as described in List A and B of the plaint. The defendants were restrained from interfering with the possession of the plaintiff. The agreement to sale dated 14.8.1996 was declared as void and inoperative. The trial court further ordered that the plaintiff will be at liberty to take appropriate steps for taking possession of the shops in question. The counsel for the petitioners has submitted that both the shops in question are under attachment under Section 145 of the Criminal Procedure Code and neither the plaintiffs nor the defendants are in possession.

(3.) FROM perusal of the judgment of the appellate court it appears that since the trial court by the decree has given liberty to the plaintiffs to take appropriate steps for seeking possession of the shops in question, the appellate court proceeded under impression that any stay order granted in the appeal will be in violation of Section 41 (b) since the stay will be stopping the plaintiff in the Court of the Sub-Divisional Officer where the plaintiff may make an application for possession of the shops. The appellate court observed that the Court of Sub-Divisional Officer is not subordinate to the District Judge's Court hence provisions of Section 41 (b) is squarely applicable.