Bhagwan Shankar Bajpayee vs District Judge and Others

Tarun Agarwala, J.—The suit of the plaintiffs was decreed and the alleged Will was declared null and void. The defendant filed an appeal u/s 96 of the C.P.C. and also filed an application alongwith affidavit under Order XLI, Rule 5 of the C.P.C. for the suspension of the decree of the trial court. The appellate court admitted the appeal and issued a notice on the stay application to the plaintiff-opposite parties. The defendant, being aggrieved by the said order, has approached the writ court seeking appropriate direction under Article 227 of the Constitution of India. The petitioner alleges that the decree of the trial court entails serious civil consequences and that pursuant to the decree, the plaintiffs are purchasing the stamp papers with the intention of selling the property and consequently the defendant has approached the Court seeking protection of his rights.

Having heard the learned Counsel for the petitioner-defendant and having perused the record, this Court finds that where a statutory remedy of an appeal is available and where serious civil consequences follow from an order, it is imperative for the appellate court to suspend the operation of the order.

In Mool Chand Yadav and Anr. v. Raza Buland Sugar Co. Ltd., Rampur and Ors. 1983 AWC 121, the Supreme Court held that where orders are challenged in appeal which orders have serious civil consequences, the judicial approach required that during the pendency of the appeal, the operation of the order should be suspended more so when the appeal had been admitted.

In the present case, from a perusal of the order of the appellate court dated 5.12.2008, it is clear that the appeal has been admitted. The decree of the trial court holds that the alleged Will is null and void. The order of the trial court has serious civil consequences and therefore, the said order must be suspended. The Court finds that 3.1.2009 has been fixed by the appellate court for the hearing on the stay application filed by the petitioner. Consequently, this writ petition is disposed of with the direction to the appellate authority to pass appropriate order on the stay application on 3.1.2009, positively. Till then the decree passed by the trial court shall remain in abeyance. The appellate court while passing the orders on the stay application will not be influenced by any observation made in this order. It is further directed that in the event the plaintiffs-opposite parties are aggrieved by this order, it would be open to the plaintiffs to move a recall application before this Court within three weeks.

The writ petition is accordingly disposed of. A certified copy of this order shall be made available to the learned Counsel for the petitioner within 24 hours on payment of usual charges.