BAIJNATH AGRAWAL Vs. TRIBENI DEVI

JUDGEMENT

(1.) The plaintiffs have come up before this Court against an order staying further proceedings of the petitioner's suit filed about ten years age at the final decree stage passed on a petition filed by the opposite parties as a road block in the way of the executability of the preliminary decree dated 10-4-1985.

(2.) The relevant facts lie in a very narrow compass.

(3.) The suit in question was filed by the plaintiffs for partition claiming 2/3rd share in the properties in question. The defendants took up a defence that the plaintiffs had lost title as they had competed their exclusive title by virtue of the ouster of the plaintiffs. The suit was decreed upholding the plaintiff's claim and a preliminary decree was passed on 10-4-1985. Against that decree a First Appeal is pending before this Hon'ble Court. The plaintiff filed an application for preparation of a final decree in the suit. The defendants moved this court in the First Appeal for staying further proceeding of the suit but this court vide its order dated 9-9-1986 instead of granting stay disposed of that petition observing to the effect that the defendants should raise the points in his petition before the trial court. Thereafter, the petitioners deposited the commissioner's fee for carving out takhta by an Advocate Commissioner and for that purpose they deposited a sum of Rs. 200/- and a commissioner was also appointed. The defendants put in an application for staying further proceeding on the ground of pendency of the first appeal before this court. The petitioners resisted that prayer on the ground that pendency of appeal is no ground for staying preparation of a final decree and that the defendants case of previous partition and ouster having been found to be false they will not put to any loss if the commissioner proceed with the process of carving cut the shares. By the impugned order, the court below passed the impugned order staying its proceeding solely on the ground that an appeal is pending against a preliminary decree.