BIRESH CHANDRA DAS Vs. HARI DASI BOSE

JUDGEMENT

(1.) This rule is directed against an order of the Additional District Judge of Howrah rejecting an application by the petitioners for stay of execution of a decree against which an appeal is pending in that Court. The suit was for joint possession of an 8-annaa share in the property in dispute. It was decreed in the Court of first instance and the order passed was for the delivery of khas possession to the plaintiffs. The petitioners are the defendants and they have preferred an appeal against that decree which is pending in the Court of the Additional District Judge of Howrah. The learned Judge passed the following order on this application. " Stay is opposed. It is pointed out that the suit was instituted in 1920 and not decreed until 1923 and that 9 1/2 months have elapsed between the finding of appeal and the petition for stay. In the circumstances the petition is rejected."

(2.) This Rule has been issued on the ground that the learned Judge has acted with material irregularity in the exercise of his jurisdiction inasmuch, as ha has not considered this application on its merits but has based his judgment on two facts only, namely that the suit was pending in the First Court for about three years and in his Court for about 9i months.

(3.) With regard to the time taken in the Court of first instance, it is rightly argued, to my mind, that the defendants cannot be held responsible for it. The conduct of the suit was in the hands of the plaintiffs, and no material has been placed either before the Judge or before us for holding that the defendants were in any way responsible for the lengthening of the proceedings in that Court.