- (1.) Aggrieved by order dated 03.11.2014 in Title Appeal No. 4 of 2008 whereby, the application filed by the petitioners seeking stay of further proceeding in Title Appeal No. 4 of 2008 has been rejected, the present writ petition has been filed.
(2.) In Title Eviction Suit No. 14 of 1995 the petitioners were defendant nos. 5 and 6. The petitioners assert that they were not served summons and accordingly, they did not appear in the eviction suit. Finally, the eviction suit was decreed vide judgment and order dated 25.02.2008, against which the substituted defendant no. 1 filed Title Appeal No. 4 of 2008. In the meantime, the decree holders instituted Title Execution Case No. 3 of 2008 for execution of decree dated 10.03.2008. Notices were issued to the petitioners in the said execution case and the petitioners appeared on 11.12.2008 in the execution case. It is stated that after obtaining copies of judgment and decree and other documents in Title Eviction Suit No. 14 of 1995, the petitioners filed a petition under Order IX Rule 13 CPC for settingaside exparte judgment and order dated 25.02.2008 and decree dated 10.03.2008. The said petition was registered as Miscellaneous Case No. 1 of 2009 and it was admitted on 01.05.2009. Thereafter, the petitioners filed application dated 22.07.2014 seeking stay of further proceeding in Title Appeal No. 4 of 2008. The said application has been dismissed vide impugned order dated 03.11.2014. Aggrieved, the petitioners have approached this Court by filing the present writ petition.
(3.) Mr. Kailash Prasad Deo, the learned counsel for the petitioners submits that the proceeding in Title Appeal No. 4 of 2008 would disclose that service of summons as mandated under the Code of Civil Procedure was not effected upon the petitioners still, the suit proceed exparte against the petitioners. The petitioners when were served notices in Title Execution Case No. 3 of 2008 came to know about exparte judgment and order dated 25.02.2008. The petitioners thereafter filed petition under Order IX Rule 13 CPC for settingaside exparte judgment and decree in Title Eviction Suit No. 14 of 1995. In these facts, it is contended that if the further proceeding in Title Appeal No. 4 of 2008 is not stayed, a legal right conferred under the Code would be taken away and the Miscellaneous Case No. 1 of 2009 which has already been admitted, would be rendered infructuous. It is further submitted that by declining an order staying further proceeding in Title Appeal No. 4 of 2008, the appellate court has exercised power vested in the trial court which is in seisin of Miscellaneous Case No. 1 of 2009.;