Poonam Srivastav - (1.) THE instant writ petition is preferred against the order dated 13.09.2010 whereby the court below has refused the application praying for interim relief. A partition suit was filed which was decreed and the execution proceedings commenced. The preliminary decree was already prepared. An appeal has been preferred by the petitioners against the preliminary decree and application for staying the preparation of final decree was refused. Hence, the writ petition.
(2.) THE respondents are also represented by Shri T.N. Jha. Submission is that in the event the final decree is prepared and it is given effect to the filing of appeal stands frustrated and the appeal would be rendered infructuous. No doubt, the submission of the learned counsel appears to be justified, specially in view of the decision of the Apex Court in the case of Mool Chand Yadav Vs. Raza Buland Sagar Co. Ltd., : (1982) 3 SCC 484. Reliance has also been placed on the decision of this Court in the case of Tek Lal Mari & Ors. Vs. Ram Kishun Marik & Ors., (2007 (1) J C R 196 (Jha)). Para5 of the said judgment is quoted below: In the background of the aforesaid facts, now the interesting question that emerges for consideration is as to whether in the facts and circumstances of the case, it is just and proper to exercise discretion under Order XLI, Rule 5, C.P.C. for staying the execution proceeding. Normally, where an appeal is pending against a preliminary decree, passing of final decree is generally to be stayed. Law has been well settled by the various High Courts in this regard. Reference may be made to the decisions in the cases of Chote Lal Vs. Sultan Singh, 111 Indian Cases 383; in the case of Jeta Singh Vs. Ganpat Rai,, AIR 1930 Loh 105 and in the case of Diwan Chand and others Vs. Nanak Chand,, AIR 1932 Loh 271.
(3.) IN view of this, I am of the considered opinion that the court below was liable to consider the application for stay, in the light of the decisions and observations made by the Apex Court.;