Decided on December 02,2008

Radha Krishna Gupta Respondents


Satish K. Agnihotri, J. - (1.)BY this petition, the petitioner challenges the legality and validity of the order dated 09.07.2008 (Annexure P/1) passed by the IInd Civil Judge, Class II, Bilaspur is Civil Suit No. 20 -A/2007, whereby and where under the application under Section 151 of the Code of Civil Procedure, 1908 (for short, "CPC") filed by respondents/defendants was allowed and the interim order dated 06.10.2006 (Annexure P/6) passed by IV Additional District Judge, Bilaspur, in Miscellaneous Civil Appeal No. 02 of 2005, was vacated.
(2.)THE indisputable facts, in nutshell, as projected by the petitioner are, that the petitioner filed a civil suit (Annexure P/2) for declaration and permanent injunction to the effect that the disputed Will dated 31.07.1996 be declared as null and void. The application filed under Order 39 Rule 1 & 2 of the CPC for temporary injunction by the petitioner/plaintiff was rejected by the trial Court on 25.04.2005 (Annexure P/5).
(3.)BEING aggrieved, the petitioner/plaintiff filed appeal being Miscellaneous Civil Appeal No. 02/2005 before IV Additional District Judge, Bilaspur. The IV Additional District Judge, Bilaspur, while considering all the aspects of the matter, directed not to exclude the disputed Will dated 31.07.1996 till further orders. However, it was clarified in the order that if there is delay caused by the plaintiff, liberty was reserved to the parties to make an application for vacating the stay. Pursuant to the observation made by the IV Additional District Judge, Bilaspur, the respondents/defendants filed an application under Section 151 of the CPC on 17.04.2008. Learned Judge, after hearing both the parties, came to the conclusion that unnecessary delay has been caused in disposal of the matter by the plaintiff, therefore, the order dated 06.10.2006 (Annexure P/6) was ordered to be vacated.
Learned counsel appearing for the petitioner submits that since the order dated 06.10.2006 (Annexure P/6) was passed by the IVth Additional District Judge, Bilaspur, Civil Judge, Class II, Bilaspur, cannot vacate the interim order.


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