Sakhi Chand Yadav and Another vs Smt. Jagtarai Devi and Others

Radha Mohan Prasad, J.—This revision application is against the order dated 23.4.97, whereby and whereunder the petition under Order 41 Rule 5 of the CPC (hereinafter regerred to as ''the Code''), filed on behalf of the Petitioners-Appellants in the Court below, for stay of delivery of possession of the decree passed against them has been rejected. It is submitted by Mrs. Sinha that the suit was filed by the Plaintiffs-opposite parties Nos. 1 and 2 for recovery of possession, which was decreed and the execution case No. 1/97 was started in the Court of Munsif Rosera. It is submitted by Mr. Sinha, learned Counsel for the Petitioner that the house is constructed over part of the disputed land, in which the Defendant-Petitioners reside and as such, the delivery of possession to that extent should have been stopped by the lower appellate Court, as has been held be the learned Judge of the Lahore High Court in the case of Fateh Khan v. Daim and Ors. reported in 1927 Lah 160. In the said decision, the learned Judge has held that ordinarily in cases relating to immovable property stay of the delivery of possession should be granted. I am unable to accept the said submission of Mr. Sinha.

Mr. Dwivedi, learned Sr. Counsel for the opposite party had rightly pointed out that no such plea was ever taken in the Court below in the application filed under Order 41 Rule 5 of the Code. This fact is also evident from the impugned order where the said question has not been even referred to by the Court below. The learned Counsel for the Petitioners has not been able to show in the Civil Revision that any ground has been taken that this point was raised in the application under Order 41 Rule 5 of the Code and passed in the Court below, yet the same has not been considered by the lower appellate Court.

Under such circumstances, I do not find any error in the impugned order warranting any interference in the revisional jurisdiction of this Court. The revision application is thus dismissed.

However, this order will not come in the way of the Petitioners from approaching the lower Court for grant of stay with respect to the alleged constructed portion again on furnishing sufficient material and adequate security, which may be considered and disposed of by the learned lower appellate Court in accordance with law.