Dayanand Kumar Yadav And Others vs Nisha Kumari

This First Appeal has been listed before DB-II by virtue of Bench slip dated 18th August 2022 tendered by Mr. Sahadeo Choudhary, the learned counsel for the appellants.

By virtue of the notice dated 30th August 2022 published in the cause-list, Mr. Sahadeo Choudhary, the learned counsel for the appellants mentioned the matter before this Bench on the ground that today is the last extended time for complying with the order passed by the Principal Judge, Family Court, Hazaribagh.

F.A. No. 56 of 2022 has been accordingly notified to be taken up for hearing at 12:00 noon.

Mr. Sahadeo Choudhary, the learned counsel for the appellants reiterates the same ground to seek an order of stay of the judgment and decree in Original Suit (Guardianship) No. 87 of 2022, vide I.A. No. 7471 of 2022.

The present First Appeal was filed on 8th July 2022 with defects. By an order dated 28th July 2022, the Joint Registrar (Judicial) granted two weeks' time to the appellants to remove the defects.

The Registry has made a noting that defect no. 4 vide SR dated 21st July 2022 and defect nos. 1 and 2 notified vide SR dated 17th August 2022 are not removed by the learned counsel for the appellants.

Mr. Sahadeo Choudhary, the learned counsel for the appellants states that two defects as noticed above have been removed and what remains is to correct the date of decree in the memorandum of appeal.

We further observe that in paragraph no. 4 of I.A. No. 7471 of 2022 the appellants have stated that they filed time petition dated 12th August 2022 before the Court below which was allowed and the next date fixed there is 30th August 2022.

Except producing a copy of the judgment and decree in Original Suit (Guardianship) No. 87 of 2022, there is no other document accompanying the present First Appeal. The learned counsel for the appellants states that the documents are not in possession of the appellants and the same can be seen by this Court only after calling from the lower Court records.

One of the grounds taken by the appellants seeking stay of operation of the judgment and decree in Original Suit (Guardianship) No. 87 of 2022 is that the order directing the appellants to hand over custody of Ansh Kumar to his mother is patently illegal, for the reason that she is an accused in a criminal case lodged in the occurrence of death of the father of Ansh Kumar.

In this context, we observe from paragraph no.10 of the judgment that RW 5, the father of Ansh Kumar, was found hanging in the house and at that time his wife was in her parental house in a different area within a different police station.

We do not intend to make any observation in this regard but would refrain from passing any final order in I.A. No. 7471 of 2022.

Mr. Sahadeo Choudhary, the learned counsel for the appellants is permitted to remove the defect no.4 during course of the day.

Issue notice to the sole respondent in I.A. No. 7471 of 2022, under registered cover with A/D and by ordinary process, for which requisites etc. must be filed within two weeks.

Post this matter on 13th October 2022.

Let a copy of this order be supplied to Mr. Sahadeo Choudhary, the learned counsel for the appellants during course of the day.