SURESH KUMAR Vs. VIRENDRA KUMAR

JUDGEMENT

(1.) Heard learned counsel for the petitioners as nobody appeared on behalf of the respondent, despite service.

(2.) The petitioner is aggrieved against the order dated 21 -9-2004 by which the executing Court allowed the objection petition filed by the judgment debtor under Section 47 CPC and held that despite the fact that the stay petition was dismissed against the execution of the decree by the appellate Court (this Court), the decree cannot be executed because of mere pendency of the appeal. The said view was taken by the executing Court on the basis of one judgment of the Hon'ble Apex Court delivered in the case of Union of India and others v. West Coast Paper Mills Ltd. and another reported in (2004) 2 SCC 747 : AIR 2004 SC 1596.

(3.) Brief facts of the ease are that the plaintiff/respondent filed a suit for injunction and for cancellation of the sale deed dated 19-7-1990 against the petitioners and Bachani Devi, Pushpa Devi and Bhoturam etc. In the suit, the petitioner filed counter claim. The respondent's suit No. 45/1990 was dismissed by the learned Additional District Judge No. 1, Hanumangarh vide judgment and decree dated 28-2-2003 and the counter claim filed by the petitioners was allowed and a decree was passed in favour of the petitioners against the respondent for removal of encroachment which was made by the respondent in the north side of the plot in dispute.