# Smt. Kumkum v. Sri Arvinder Singh Bagga @ Bablu & Ors

- **Citation:** (2014) 2 ILRA 615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-23
- **Case number:** Civil Misc. Writ Petition No.22619 of 2014
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kumkum-v-sri-arvinder-singh-bagga-bablu-ors-42855
- **Pages:** 3

## Headnote

Civil Procedure Code-Order 41 Rule-5-
Power of Appellate Court-Trail Courtdecreed
the
suit
for
permanent
injunction-appeal against-first appellate
Court stayed the operation of judgment
during pendancy of appeal-argument that
Lower Appellate Court at the best can
stay the execution-but can not stay the
operation-held-court should not hyper
technical-under Section 151 C.P.C.-with
inherent power can pass such order-even
otherwise being interlocutory order-not
liable to interfere under extra-ordinary
jurisdiction of Writ Court.

Held: Para-8
It is pertinent to mention that wherever
any judgment, order and decree is likely
to visit a party with civil consequences
and
the
same
is
under
challenge,
normally
pending
adjudication
it
is
always better to stay the effect and
operation of such an order. Thus, the
appellate court in exercise of its inherent
power has not committed any error in
passing the impugned order.

## Text

2 All] Smt. Kumkum Vs. Sri Arvinder Singh Bagga @ Bablu & Ors.
615
entitled to the benefit of sub-section (2) of
Section 24 of the Act of 2013.

6. Except for merely stating in
paragraph 7 of the writ petition that the
petitioners are still in actual physical
possession of the entire land which is still
lying vacant and filing of some photographs
said to be relating to the land in question,
there is no proper evidence in the form of
any document like Khasra etc. to show that
the petitioners still continue in possession of
the land.

7.

Even
otherwise,
once
the
compensation has been awarded and paid to
the petitioners on the basis of an agreement
executed under the Rules of 1997, it would
be presumed that the possession of the land
has been taken over from the petitioners. It is
not a case where a normal Award has been
passed and thereafter the petitioners had been
litigating with regard to the possession being
taken from them. Here is a case where after
the Award was passed, wherein it was
mentioned that the possession of the land has
been taken on 20.1.1998, the petitioners kept
silent and had accepted the amount awarded
and did not dispute the fact at any stage that
the possession of the land had not been taken
from them, although specifically mentioned
to be so in the Award itself.

8. As such, we are of the firm view
that in the circumstances, the petitioners
cannot be given the benefit of the
provisions of the Act of 2013. Their claim
that they continued in possession of the
land even after receiving compensation
under the Award, which mentions about
the taking over of possession of the land
from the petitioners, does not deserve to
be accepted. Finality has to be given to a
proceeding/transaction at some stage. In
the present case, the transaction had been
completed once a compromise/agreement
had been entered into between the parties and
award was passed, which was accepted by
the petitioner. After accepting compensation
under the award, the petitioners cannot turn
around after more than a decade and say that
possession (as already mentioned in the
award) was not given by or taken from them.

9. We are further of the view that in
case the petitioners had not handed over the
possession after the Award had been passed
even after receiving compensation and also
did not challenge the said proceedings before
any competent court or authority by not
handing over possession of the land, the
petitioners had clearly not conducted
themselves properly and had proceeded with
a dishonest intention. Such being the
position, the petitioners would not be entitled
to any relief under the extra ordinary
discretionary jurisdiction of this Court under
Article 226 of the Constitution of India.

10. For the foregoing reasons, the
petitioners are not entitled to any relief, as
we are of the opinion that the provisions
of Section 24(2) of the Act of 2013 would
not be attracted in the facts of the present
case. This writ petition is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2014

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No.22619 of 2014

Smt. Kumkum ...Petitioner
Versus
Sri Arvinder Singh Bagga @ Bablu & Ors.
 ...Respondents

Counsel for the Petitioner:
616 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Siddharth Srivastava

Counsel for the Respondents:
Sri Pavan Kishore, Sri Krishan Ji Khare

Civil Procedure Code-Order 41 Rule-5-
Power of Appellate Court-Trail Courtdecreed
the
suit
for
permanent
injunction-appeal against-first appellate
Court stayed the operation of judgment
during pendancy of appeal-argument that
Lower Appellate Court at the best can
stay the execution-but can not stay the
operation-held-court should not hyper
technical-under Section 151 C.P.C.-with
inherent power can pass such order-even
otherwise being interlocutory order-not
liable to interfere under extra-ordinary
jurisdiction of Writ Court.

Held: Para-8
It is pertinent to mention that wherever
any judgment, order and decree is likely
to visit a party with civil consequences
and
the
same
is
under
challenge,
normally
pending
adjudication
it
is
always better to stay the effect and
operation of such an order. Thus, the
appellate court in exercise of its inherent
power has not committed any error in
passing the impugned order.

(Delivered by Hon'ble Pankaj Mithal ,J.)

1. Heard Sri Siddhartha Srivastava,
counsel for the petitioner and Sri Pavan
Kisore on behalf of respondents No.5 and 6.

2. Petitioner is aggrieved by the
order dated 31.3.2014 passed by the
appellate court disposing of application
paper No.13-Ga in Civil Appeal No.95 of
2013 (Nav Kalpna Sahkari Avas Samit
and another Vs. Smt. Kumkum and
others).

3. It appears that the petitioner had
instituted a suit for a decree of permanent
injunction. The said suit was decreed vide
judgment
and
order
dated
20.5.2013
restraining the defendants to the suit from
interfering in the possession and ownership
of the petitioner over the suit property.

4. Aggrieved by it defendants No.5
and 6 preferred the above appeal.

5. The appellate court by the
impugned order, pending appeal, has
stayed the operation of the aforesaid
judgment, order and decree vide order
dated 31.3.2014 till the disposal of the
appeal for which 1.5.2014 has been fixed
as the next date.

6. In challenging the above order the
submission of Sri Srivastava is that in
exercise of power under Order 41 Rule 5
C.P.C. the appellate court has no
jurisdiction to stay the operation of the
judgment, order and decree rather it can
only stay execution of the decree.

7. The argument advanced appears
to be attractive but on a closure scrutiny I
find that the stay of operation of the
judgment, order and decree has the same
effect as stay of execution of the decree.
Moreover, the court below has the
jurisdiction to stay the operation and
effect of the order which is under
challenge in appeal before it in exercise of
its inherent power so that justice may be
done to parties. Thus, the power of stay of
the operation of the judgment, order and
decree may not be technically available
under Order 41 Rule 5 C.P.C. but is
traceable to same provision in law i.e.
Section
151
C.P.C.
2 All] Pradeep Shukla Vs. C.B.I.
617

8. It is pertinent to mention that
wherever any judgment, order and decree is
likely to visit a party with civil consequences
and the same is under challenge, normally
pending adjudication it is always better to
stay the effect and operation of such an order.
Thus, the appellate court in exercise of its
inherent power has not committed any error
in passing the impugned order.

9. The said impugned order is only
an interlocutory order which is operative
only till the disposal of the appeal for
which a date has been fixed. It does not
has the effect of deciding any substantive
rights of the parties which may require
any interference in exercise of extra
ordinary jurisdiction of this Court.

10. In view of the above, I find no
merit in the petition and it is accordingly
dismissed with no orders as to costs.

11. The writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.05.2014

BEFORE
THE HON'BLE A.P. SAHI, J.

Crl. Misc. IInd Bail Application No. 22648
of 2013

Pradeep Shukla ...Applicant
Versus
C.B.I. ...Opp. Party

Counsel for the Petitioner:
Sri Sudeep Harkauli

Counsel for the Respondents:
Sri Anurag Khanna
High Court Rules-Chapter VIII-Rules-18Application for extension of bail-on
second bail on medical ground interim
bail granted for six month-extension of
bail
application
filed-based
upon
computer information by High Courtonce second bail application disposed ofnothing further remains-can not be
treated pending application-extension
application
-held
not
maintainablewarning given to registry from giving
such information.

Held: Para-24 & 25
24. Having recorded so, I find the
present
application
to
be
not
maintainable and, therefore, this Court
does
not
have
the
jurisdiction
to
entertain this application as per the ratio
of the judicial pronouncement of the
Apex Court in the case of Nazma Vs.
Javed Alias Anjum, (2013) 1 SCC 376,
and the case of Rakesh Kumar Pandey
Vs. Udai Bhan Singh, (2008) 17 SCC 764.

25. The application, therefore, being not
maintainable, is accordingly rejected
without prejudice to the rights of the
applicant to move a proper regular fresh
bail
application
if
so
advised
in
accordance with law.

Case Law discussed:
(2013) 1 SCC 376; (2008) 17 SCC 764; (1980)
2 SCC 559; Crl. Appeal. 689 of 2014; (2013) 1
SCC 376; (2008) 17 SCC 764.

(Delivered by Hon'ble A.P. Sahi, J.)

1. This application to extend bail has
been filed on the assumption that Bail
Application No.22648 of 2013 as per the case
status report obtained from the computer
section of the High Court and even otherwise is
still pending. The said information received
from the computer section has been placed
before the Court.

2. The application, which arises out
of the aforesaid bail application, has been