DHARMENDRA RAGHUVANSHI Vs. NAVIN KUMAR JAIN

JUDGEMENT

(1.) The appellant has filed I.A.No.1086/2018 seeking stay of the execution proceedings.

(2.) It is submitted by the learned counsel for the appellant that plaintiff/respondent has filed a suit against the appellant/defendant for specific performance of contract alleging that plaintiff and defendant have entered into an agreement to sale of a land for a consideration of Rs.7,50,000/- and in consequence of same, it was alleged that appellant/defendant obtained Rs.6,80,000/- from plaintiff on 14.07.2018 and executed a registered agreement to sale, however, when appellant/defendant did not execute the registered sale deed, then plaintiff sent a legal notice to defendant for refund of Rs.7,00,000/- alongwith interest. Thereafter, a suit was filed. It is further submitted that suit was contested by defendant denying the execution of any agreement to sale and he also denied that he has ever received any amount for execution of sale deed. It is also submitted that without appreciation the evidence led by the parties in true perspective, trial Court decreed the suit in favour of plaintiff thereby directing the defendant to execute the sale deed after obtaining remaining amount of Rs.50,000/-. Hence the first appeal has been preferred. It is also submitted that the appeal deserves to be allowed and the Court was pleased enough to stay the execution of sale deed. However, subject to compliance of the provisions of Order 41 Rule 5 of IPC vide order dated 17.06.2016. Thereafter, vide order dated 05.08.2016, the appellant was directed to deposit the amount of Rs.6,80,000/- allegedly received by him before the trial Court within a period of two months. After initiation of execution proceedings as the appellant could not comply the provisions of Order 41 Rule 5 CPC, the appellant moved an application for extension of time to comply the order vide I.A. No. 4512/2017, however the same stood dismissed as withdrawn vide order dated 14.12.2017 with liberty to the appellant to move appropriate application as stay order earlier granted stood vacated on not being complied the provisions of Order 41 Rule 5 CPC by the appellant. Hence, in compliance of the aforesaid order, this application for grant of stay has been filed.

(3.) It is submitted that the appellant is a small agriculturist and the land in question is the only source of income and that too due to drought last year as well as this year, he is unable to pay the amount under decree or as directed by this Court, and therefore, the execution proceedings be stayed, however, vide order dated 23.08.2017, trial Court rejected the aforesaid application. It is further submitted that appellant is a poor farmer and the suit land is the only source of income which the respondent/plaintiff is trying to grab under the false and fabricated agreement execution of which has been specifically denied by the appellant/defendant and if the effect and operation of the impugned execution proceedings is not stayed, the appellant would suffer irreparable loss. It is further submitted that the defendant is ready to deposit the amount under decree for stay of execution proceedings for time being or till appeal is decided, but some breathing time be granted to the appellant so that he can arrange the money and deposit the same in easy installments. Hence, it was prayed to stay the execution proceedings or in alternative, the appellant be provided some breathing time to comply the provisions of Order 41 Rule 5 CPC. It is also submitted that the application is based upon bonafide belief.