TEK LAL MARI Vs. RAM KISHUN MARIK

JUDGEMENT

(1.) HEARD Mr. V.K. Prasad, learned Counsel appearing on behalf of the appellants and Mr. G.N. Chandra, learned Counsel appearing on behalf of the respondents.

(2.) IN this interlocutory application purported to have been filed under Order 41 Rule 5 of the Code of Civil Procedure (in short CPC), the appellants have prayed for stay of further proceeding of Execution Case No. 6 of 2006 pending in the Court of Subordinate Judge -III, Giridih till the disposal of this Second Appeal.

(3.) MR . V.K. Prasad, learned Counsel appearing for the appellants, on query, informed this Court that no appeal has been preferred against the final decree passed by the Court below in Partition Suit No. 61 of 1986. In this interlocutory application also, it has not been stated by the appellants that they have challenged the final decree passed in the suit. Admittedly, after the preliminary decree was passed on 6th December, 2003, a proceeding for preparation of final decree was initiated and final decree was passed on 30.3.2006. In between 6th December, 2003 and 30th March, 2006, no application under Order 41 Rule 5 CPC was filed by the appellants in this appeal during the pendency of final decree proceeding praying for stay of preparation of final decree. It was only after the final decree was put in execution in Execution Case No. 6 of 2006, the instant application has been filed for stay of execution of the final decree.