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Judgment
The matter comes upon third stay application filed by the appellant.
The present appeal was admitted on 4.9.2015 and on that date, the stay application was ordered to be rejected. On the said date, the original stay
application as filed alongwith the appeal as well as the second stay application filed by the appellant, both were pending and, therefore, it would
deemed that both the stay applications stood dismissed.
In the present third stay application, it is inter alia indicated that appellant has questioned the judgment and decree passed by the trial court as upheld
by the first appellate court, wherein, it has been held that plaintiff â€" Mohd. Ibrahim had right in the suit property and the decree dated 21.9.1987
passed in Civil Original Suit No.107/1987 obtained by the appellant was void. Whereafter, during pendency of the second appeal, the property in
question was transferred to Tauquir Ahmed.
An application under Order I Rule 10 CPC was filed by the applicant, which was allowed and Tauquir Ahmed has been impleaded as party
respondent to the present proceedings.
It is submitted that Tauquir Ahmed filed a suit for eviction against Nisar Ahmed, which has been decreed and that as the appellant is in possession of
a part of the property, which is subject-matter of the decree passed in favour of Tauquir Ahmed against Nisar Ahmed, injunction has been sought in
the present appeal against Tauquir Ahmed in executing the decree against the appellant qua the portion of the property, which is in her possession.
Learned counsel for the appellant submits that as the suit property, which is in possession of the appellant, the appellant is sought to be evicted in a
decree obtained by Tauquir Ahmed, the respondents deserve to be restrained from taking possession.
Learned counsel for the respondent â€" Tauquir Ahmed submitted that the decree, which was passed against Nisar Ahmed by the competent civil
court, has been upheld by this Court in S.B. Civil First Appeal No.44/2015 and in the execution proceedings, the appellant had filed application under
Order XXI Rule 97 CPC, which objections were rejected, which were questioned by way of filing appeal, which was also rejected.
Further submissions were made that thereafter the suit has been filed by the appellant therein, the application seeking temporary injunction was
rejected against which, the appeal filed was also rejected and writ petition preferred by the petitioner has also been dismissed. It is submitted that once
the appellant has already taken/initiated proceedings in the decree passed in favour of Tauquir Ahmed by competent civil court, no injunction can be
sought in the present proceedings so as to frustrate the decree passed by the competent civil court and, therefore, the application deserves to be
rejected.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
From the submissions as noticed hereinbefore, it is apparent that by way of present third stay application, the appellant is seeking a stay on the decree
passed by a competent civil court in a totally different suit though the subject matter of that suit may be overlapping, insofar as, the present appeal is
concerned.
In the said decree, the appellant has already taken proceedings in accordance with law to protect her possession by filing objections under Order XXI
Rule 97 CPC and thereafter, filing suit alongwith application seeking temporary injunction.
Having failed in attempts to seek stay and/or setting aside of the said decree qua the appellant, now seeking stay in the present proceedings after
dismissal of earlier stay applications cannot be countenanced. In view thereof, no case of grant of any interim order is made out. The third stay
application is dismissed.
Another application has been filed by the appellant under Section 340 Cr.P.C. on 22.9.2017 with the allegations that in the present appeal an
application for early hearing was filed on 24.4.2009, supported by affidavit of Mohd. Ibrahim, whereas, the said Mohd. Ibrahim had already expired on
6.9.2006 and, therefore, apparently the affidavit was wrongly sworn-in in the name of Mohd. Ibrahim and, therefore, appropriate proceedings be
initiated in this regard.
Having considered the submissions made in the application, it is apparent that an innocuous application for early hearing was filed in the year 2009 and
the present application has been moved in the year 2017 apparently for the purpose of creating pressure on the respondents on account of pendency
of third stay application.
In the overall circumstances of the case, no case for initiating proceedings under Section 340 Cr.P.C. is made out. The said application is dismissed.
List the appeal for hearing in due course.