ANANTA CHARAN POTHAL Vs. GURAMANI POTHAL

JUDGEMENT

(1.) This is an application under Order 41 Rule 5 read with Section 151 of the C.P.C. arising out of R.S.A. No. 224 of 2012. The appellant-petitioner is the judgment-debtor in Execution Case No. 4 of 2012 pending in the court of the learned Civil Judge (Senior Division), Balasore. Appellant-petitioner has preferred the appeal challenging the judgment and decree passed by the learned lower appellate court confirming the judgment and decree of the trial court in a suit for partition bearing T.S. No. 403 of 1990-1 in the court of the learned Additional Civil Judge (Senior Division), Balasore which was brought by the appellant-petitioner and was dismissed by the learned trial court. In their written statement, the respondent-O.P. Nos. 1 to 3 (defendant Nos. 1 to 3 in the suit) had made a counter-claim seeking declaration of their title over Schedule P and Q properties as mentioned in the written statement. The plaintiff-appellant denied the counterclaim challenging the title and possession of defendant Nos. 1 to 3 over Schedule P and Q properties. Learned trial court rejected the counter-claim but the learned lower appellate court allowed it declaring the title of defendant Nos. 1 to 3 over the counter-claim properties and directed eviction and recovery of possession. Thus, the Execution Proceeding is regarding delivery of possession of the counter claim properties which is, admittedly, in the occupation of the appellant-petitioner.

(2.) In the present petition, the petitioner in support of the petition for stay of the Execution Proceeding, has contended that he has got a very good prima facie case and fair chance of success in the Second Appeal and that unless the Execution Proceeding is stayed, the petitioner who is, admittedly, in possession of the properties will be highly prejudiced and will suffer substantial loss.

(3.) In their objection, the opposite party-respondent Nos. 2 and 3 (Respondent No. 1 has died during pendency of the Second Appeal leaving behind respondent Nos. 2 and 3 as his legal heirs) have contended that the appellant has absolutely no chance of success in the Second Appeal and that it is not the appellant but the Respondent Nos. 2 and 3 who will suffer substantial loss in the event the Execution Proceeding is stayed.