Shashi Bhushan Prasad v. PRATAP SINGH

learned counsel appearing for opposite party no.1. The respondents of C.W.J.C. No.9333 of 2010, who is petitioner in the instant case, has filed the instant application for reviewing order dated 27.08.2012, passed in the said case. One Uma Shankar Prasad and others (Respondents in Review petition) filed Title Suit No.42 of 1997 for declaration of title and confirmation of possession over an area of 16 decimals, appertaining to Tauzi no.12033, Khata no.85 and plot no.178, Mauza-Hilsa, P.S. Hilsa, District Nalanda. The petitioner herein this Review petition was added as intervenor defendant by the trial court. The suit was dismissed 2 Patna High Court C. REV. No.445 of 2012 (3) dt.30-01-2013 on 17.11.2000 and in appeal the judgment of dismissal was reversed on 13.10.2004. A Second Appeal bearing S.A. No.12 of 2008 was preferred by the intervenor Shashi Bhushan Prasad, which he subsequently withdrew, as he had preferred Title Suit no.28 of 1997. The plaintiffs, Uma Shankar Prasad & Others, of Title Suit no.42 of 1997, filed Execution case no.05 of 2006 for execution of decree. The review petitioner filed a petition for staying the execution case being Misc. Case no. 02 of 2002, which was allowed. A writ under Article 227 of the Constitution was preferred by Uma Shankar Prasad & others (the plaintiff of Title Suit no.42 of 1987), which was allowed and the order of Execution court staying the execution proceeding was set aside. The review petitioner submits that certain facts were not properly placed before this Court, which occasioned error in order under Review. Learned counsel submits that the Execution Munsif stayed the proceeding in the Execution case, as there was an order of status quo in Title Suit no.28 of 1997 filed by the review petitioner and which continued to operate so, which was not brought to the notice of this Court. Learned counsel submits that it would appear from the order dated 23.01.1998 passed in Title Suit no. 28 of 1997 that status quo order was passed till disposal of the suit. It is true that the decree holder of Title Suit 3 Patna High Court C. REV. No.445 of 2012 (3) dt.30-01-2013 no.42 of 1987 went in appeal, which was allowed. The review petitioner submits that it would appear from the order passed in Misc. case no. 01 of 2007 that the petition of Uma Shankar Prasad and others for vacating the stay granted vide order dated 23.0.1998 was rejected on 05.12.2006. On the other hand, the learned counsel appearing for Uma Shankar Prasad submits that both order dated 05.12.2006 and

23.01.1998 was set aside. Learned counsel refers to paragraph 1 of the order, the relevant extract of which is quoted herein below: “Appellants have preferred this appeal against the order dated 15.12.2006 read with order dated

23.01.1998 passed by learned Sub-Judge-II, Hilsa in Title Suit no. 28/1997, whereby the learned Sub- Judge has refused to recall/set aside the ad-interim order of injunction dated 23.1.1998 by invoking its power u/o 39 rule 4 C.P.C.” On the other hand Mr. Arora, learned counsel appearing for review petitioner while referring to different paragraphs submits that only order rejecting the petition for vacating stay was set aside and not the order of status quo. In support of his submissions, learned counsel has referred to own petition of the writ petitioner Uma Shankar Prasad filed in the court below to pass appropriate order on their petition 4 Patna High Court C. REV. No.445 of 2012 (3) dt.30-01-2013 filed for vacating the stay. Learned counsel submits that there was no occasion for filing the petition for vacating the stay if no order of status quo existed. The petitioner has brought the entire order sheet of 42 of 1997 on record to canvass that order granting status quo dated 23.01.1998 was not set aside. The writ petitioners submit that the review petitioner ought to have filed an appeal before the Hon’ble Apex Court in stead of filing the review petition, as there is no error apparent on the record. The review petitioner would counter the submission stating that it is apparent from the impugned order of the Execution Munsif that the status quo order passed by the trial court in Title Suit no.28 of 1997 continued. It appears that the trial court has already fixed a date for disposing the petition filed by the writ petitioners on matters of injunction. As such, I direct the trial court to dispose of the same on merit within six weeks from the date of receipt of a copy of this order. The parties are represented through counsels, who would inform their respective parties. The parties would co- operate. Status quo as of today would be maintained for one months till after receipt of order of this Court in the trial court. 5 Patna High Court C. REV. No.445 of 2012 (3) dt.30-01-2013 In case, a party does not appear before the trial court, the party itself would be blamed for the same. In such situation, the court would pass appropriate orders on petition of writ petition on perusal of the case records. Let the order be communicated to trial court as well as District Judge, Nalanda through FAX at the cost of the petitioner, which must be deposited by Friday i.e. 01.02.2013. Uday/- (Samarendra Pratap Singh, J)