M.Y.EQBAL,J. - (1.) HEARD Mr. V.K. Prasad, learned Counsel appearing on behalf of the appellants and Mr. G.N. Chandra, learned Counsel appearing on behalf of the respondents.
(2.) IN this interlocutory application purported to have been filed under Order 41 Rule 5 of the Code of Civil Procedure (in short CPC), the appellants have prayed for stay of further proceeding of Execution Case No. 6 of 2006 pending in the Court of Subordinate Judge -III, Giridih till the disposal of this Second Appeal. For better appreciation of law that shall be discussed herein below, it is pertinent to mention here the brief facts of the case. The plaintiffs - respondents filed a partition suit being No. 61 of 1986 for a preliminary decree in respect of the joint family properties. The suit was dismissed in terms of judgment and decree dated 6.6.1988. The plaintiffs -respondents; being aggrieved by the said judgment, preferred appeal before the District Judge, Giridih being Title Appeal No. 107 of 1988. The appeal was finally disposed of in terms of judgment and decree dated 6.12.2003 and preliminary decree was passed for partition of 50 paise share out of the suit land detailed in Schedule B of the plaint. The defendants -appellants then preferred this Second Appeal challenging the judgment and decree passed by the District Judge, Giridih in the appeal.
(3.) MR . V.K. Prasad, learned Counsel appearing for the appellants, on query, informed this Court that no appeal has been preferred against the final decree passed by the Court below in Partition Suit No. 61 of 1986. In this interlocutory application also, it has not been stated by the appellants that they have challenged the final decree passed in the suit. Admittedly, after the preliminary decree was passed on 6th December, 2003, a proceeding for preparation of final decree was initiated and final decree was passed on 30.3.2006. In between 6th December, 2003 and 30th March, 2006, no application under Order 41 Rule 5 CPC was filed by the appellants in this appeal during the pendency of final decree proceeding praying for stay of preparation of final decree. It was only after the final decree was put in execution in Execution Case No. 6 of 2006, the instant application has been filed for stay of execution of the final decree.;