R.K.MERATHIA,J. - (1.) PETITIONERS have challenged the order dated 20.6.2008 passed by the learned Sub -Judge -II. Dhanbad in Execution case No. 01 of 2006, directing for issuance of arrest of warrant for detention of the judgment debtors in civil prison.
(2.) MR . Manjul Prasad, learned Counsel appearing for the petitioners, referring to the order dated 24.1.2008 passed in First Appeal No. 170 of 2005 submitted that the petitioners furnished the list of properties which they proposed to place before the executing Court as security, but even then the impugned order has been passed. Mr. Mazumdar, appearing for the respondents, on the other hand, submitted that the petitioners filed an application being I.A. No. 3088 of 2006 in the said First Appeal No. 170 of 2005 for stay of further proceedings of Execution Case, in question, but it was rejected as not pressed on 22.3.2007. Thereafter the executing Court was Justified in proceeding with the execution case.
(3.) AFTER hearing the parties and on going through the records of the said F.A. No. 170 of 2005, the following position emerges. I.A. No. 3088 of 2006 was filed on behalf of the petitioners in the said First Appeal, for staying further proceedings of the Execution case in question. On 22.3.2007, it was rejected by passing the following order: I.A. No. 3088 of 2006 Learned Counsel appearing for the appellant does not want to press this interlocutory application filed under Order XLI, Rule 5, CPC. Prayer is allowed. This application is rejected as not pressed. Then on 24.3.2007 an application was filed on behalf of the petitioners, before the executing Court for staying further proceeding of the execution case, till final decision of the said First Appeal. It is significant to note that the purported reason for not pressing the said I.A. No. 3088 of 2006 was no mentioned in the application dated 24.3.2007, but in another petition filed on 23.4.2007, for the self same relief, i.e., stay of execution case, petitioners tried to develop a story, that the said I.A. No. 3088 of 2006 was not pressed, as this Court "opined that why the stay is not being prayed in Court below than pressing directly before the Hon'ble Court" and therefore the counsel of the petitioners withdrew the petition. There was no such observation in the order dated 22.3.2007, as quoted above. Then, petitioners, again filed I.A. No. 2460 of 2007, for the self same relief i.e., stay of execution case, on which the order dated 24.1.2008, relied by the petitioner was passed. In the facts and circumstances noticed above, the petitioners cannot be al lowed to rely on the order dated 24.1.2008, passed in the said First Appeal. It may also be noted that when the said LA. No. 2468 of 2007 was taken up in the said First Appeal, on 19.8.2008. it was submitted on behalf of the petitioners that this writ petition has been filed and therefore liberty may be given to pursue this writ petition. Thus it is clear that the petitioners are not only trying to mislead the Courts but are also trying to abuse the process of Courts.;