BIJAY KUMAR AGARWALLA AND ANR. Vs. RAMAKANTA DAS

JUDGEMENT

(1.) THE Plaintiffs in Money Suit No. 3 of 1983 pending in the Court of the Subordinate Judge, Baripada filed this petition under Section 115, Code of Civil Procedure (for short 'the Code ') seeking to assail the order dated 30th, of August, 1986 rejecting their application under Order 38, Rule 5 read with Section 151 of the Code.

(2.) THE Petitioners filed the aforementioned suit against the opposite party for realisation of Rs. .1.650/ - from him towards arrear house rent till 30th September, 1982, and compensation for unauthorised occupation from 1 -10 -1982 at the rate of Rs. 5/ - per day amounting to Rs. 570/ - till filing of the suit and for other consequential reliefs. The suit was decreed ex parte against the opposite. party. On his application under Order 9 Rule 13 of the Code, the Court below set aside the ex parte decree subject to payment of cost with a further direction that the Defendant would file his written statement within thirty days. Having failed to file the written statement within the time granted by the Court the written statement of the Defendant was not accepted. Against the said order of the trial Court he filed Civil Revision No. 91 of 1986 before this Court has passed the order directing stay of further proceedings in the suit. Communication of the stay older was received by the trial Court on 28 -2 -1986 as appeared from the discussions in the impugned order. Thereafter on 25 -4 -1986 the Petitioners find a petition under Section 151 and Order 38, Rule 5 of the Code with the prayer to direct the opposite party to deposit the entire arrear dues as claimed in the plaint and to further deposit day to day compensation arising thereafter or to pass an order for attachment of his movable. The Petitioners alleged, inter alia, that the opposite party who has no immovable property at Baripada and earns his livelihood by private service in a shop and by doing some small business, is likely to leave the jurisdiction of the Court in order to avoid payment of decretal dues which is likely to be passed against him.

(3.) THE learned Counsel for the Petitioners challenged the findings of the Court below on both aspects, that is maintainability of the application as well as its merit. On the question of maintainability the contention of the learned Counsel was that the order of stay of further proceedings meant further proceedings for trial of the suit and the said order did not affect jurisdiction of the .trial Court to pass interlocutory orders for the purpose of keeping the proceeding alive. On the other aspect, he contended that the Court below did not consider properly the allegations made in the petition filed by the Petitioners. The learned Counsel for the opposite party on the other hand supported the order passed by the Court below.