Anil Mondal vs Subarnamoy Ghosh

This revisional application in directed against Order No. 46 dated 18th December, 2013, passed by the Civil Judge, (Senior Division) Additional Court, Bankura, in Miscellaneous Case No. 2 of 2015 by which an application, u/s 151 of the Code of Civil Procedure, to implement an order of injunction is rejected. Suit for partition is decreed in final form and the execution case is levied.

Alleging interference with the peaceful possession, an application for injunction was taken out by the petitioner which was eventually allowed.

The opposite parties Carried the said order in a statutory appeal before the Appellate Court.

Admittedly, there is no stay order granted by the Appellate Court as yet, The petitioner takes out an application u/s 151 of the CPC to implement the said order of injunction alleging violation thereof by the opposite parties. Curiously enough, the Executing Court dismissed the said application as an application for stay as well as an appeal is pending before the Appellate Court. It appears that attention of the Executing Court was not brought to the provisions contained under Order 41 Rule 5 of the CPC which specifically contemplates that mere filing an appeal does not tantamount to stay. Furthermore, pendency of an appeal or an application for stay cannot be a ground for rejection of the stay application. Even in a case where an order of stay is to he granted, the said application is required to be kept in abeyance till vacation and/or variation of the said order or dismissal of the appeal before the Appellate Court.

The entire approach of the Executing Court, in my opinion, is contrary to the law and, therefore, the order is not sustainable, The order impugned is set aside.

To mitigate the situation that has arisen, this Court feels that justice would be sub served if the District Judge, Bankura, before whom miscellaneous Appeal No. 32 of 2013 is pending, is directed to dispose of the application for stay as well as the appeal within three weeks from the date of communication of this order positively.

The Executing Court is directed to fix the hearing of this application after five weeks from the date of communication of this order and shall proceed to dispose of the same in accordance with law after taking into consideration the fate of the said appeal. With the aforesaid observations, the revisional application is disposed of. However, there shall be no order as to costs.