PURUSHOTTAM KUMAR VERMA Vs. RAM SINGH

JUDGEMENT

(1.) THE appellants have filed I.A.No. 3068 of 2004 under Order XLI, Rule 5 read with Section 151 of Code of Civil Procedure (Inshort "C P C") for staying further proceedings of Execution Case No. 4 of 2003 pending in the Court of Sub -Judge VI, Chapra till the final disposal of this appeal.

(2.) BRIEF facts of the case are that respondents No.1 to 4 had filed Partition Suit No. 101 of 1990 for their half share in Schedule -ll of the plaint which included 5 kathas 14 dhurs of land of Plot No. 3207 of Khata No.1013 with a house (for the purpose of disposal of this petition hereinafter referred to as "suit house") and other lands and also shares to different extent in their lands described in other schedules of plaint. The suit was decreed and, thereafter, final decree was prepared against which the appellants who were defendants No. 13 and 14. before the Court below and who are purchasers of the suit house from respondent No. 5 in this appeal who was defendant No. 5 in the original suit have preferred this appeal. According to appellants, the suit house was purchased by appellant No. 2 and mother of defendant No.1 on 26.8.1966 for consideration of Rs. 10,000/ - from respondent No. 5 which was his self -acquired property and after purchase, appellants made further construction and investment in the house which was already standing there from before and now value of the land is much more than its original value but a suit for partition was filed by respondents to defeat the right and title of appellants. Their further case is that Pleader Commissioner, in absence of appellants and without adjusting the suit house in the share of vendor of appellants has prepared the final decree. Their further case is that they have filed first appeal No. 260 of 2002 against the judgment and preliminary decree of the Court below and that appeal is pending before this Court for disposal and appellants have got good case on merit and there is every chance of their success in the appeal. It is also the case of the appellants that balance of convenience lies in their favour and they will suffer irreparable loss if stay is not granted by this Court. Prayer has been made for staying the further proceedings of Execution Case No. 4 of 2003 pending in the Court of SubJudge VI.

(3.) RESPONDENT No.1 is, therefore, directed to deposit a sum of Rs. 700/ - per month in Court below from the date. when he gets delivery of possession of his share in suit house allotted to him. The aforesaid amount for every month must be deposited latest by 15th day of succeeding month.