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Judgment
Gautam Kumar Choudhary, J
Heard, learned counsel for the parties.
Petitioners are the defendants and the Original Suit being O. S. No.576 of 2023 has been decreed in favour of the plaintiff(s) against which the petitioners have preferred Title Appeal being Civil Appeal No.70 of 2024.
The main grievance of the petitioners is that the said suit was decreed ex-parte without hearing the petitioner and the Executing Court is proceeding with execution of decree during the pendency of the said Civil Appeal and the instant petition has been filed for stay of the execution proceeding.
Petitioners have efficacious remedy under Order XLI Rule 5 CPC before the 1st Appellate Court, and without invoking the same, the extra-ordinary writ jurisdiction has been invoked.
In this view of the matter, the instant CMP is disposed of, with liberty to the petitioners to file an appropriate petition before the First Appellate Court for stay of the execution proceeding, and the same will be considered on its own merit without being prejudiced by the order of this Court.
It goes without saying that once a petition under Order XLI Rule 5 CPC is filed, the same will be heard without any further delay.