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ARCHANA PURI, J. –

1. Challenge in the present revision petition is to the order dated 16.11.2023 passed by learned First Appellate Court, vide which, an application filed for staying the operation of judgment and decree dated 22.12.2022 was dismissed.

2. The facts germane, to be noticed, are as follows:-

3. That, initially, respondent-plaintiff filed a suit against the petitioner-defendant for symbolic possession by way of specific performance of agreement to sell dated 07.11.2014, in respect of agricultural land measuring 8 Kanal 15 Marla, as detailed in the headnote of the plaint, copy whereof is Annexure P-1. However, in the written statement, copy whereof is Annexure P-2, the petitioner-defendant had denied the execution of any such agreement and alleged about her signatures to have been obtained on blank papers, fraudulently.

4. On appraisal of the evidence on record, vide judgment dated 22.12.2022, copy whereof is Annexure P-6, the suit of the plaintiff was decreed and the respondent-plaintiff was held entitled to decree of symbolic possession, by way of specific performance of agreement to sell in question, with regard to the suit land. Also, a direction was given to the petitioner-defendant to execute and register sale deed, in favour of the respondent-plaintiff. Besides the same, consequential relief of permanent injunction was also granted, thereby, restraining the petitioner-defendant from dispossessing the respondent-plaintiff from the suit land and from alienating the land, by way of sale, gift or creating any encumbrance upon it.

5. Feeling aggrieved by the aforesaid decretal of the suit, the petitioner-defendant had filed an appeal before learned First Appellate Court to assail the judgment and decree dated 22.12.2022. Along with the appeal, an application was also filed, thereby, making prayer for staying the operation of the impugned judgment and decree. However, vide impugned order, the said application was dismissed by learned First Appellate Court, with the observations, which are reproduced as herein given:-

“9. Apparently, the defendant has sought that the operation of the judgment and decree dated 22.12.2022 may be stayed since it would cause irreparable loss to him if it is not stayed. However, this court does not find any merit in this application because the trial court has granted the relief of symbolic possession by way of specific performance of the agreement to sell. Even if it is believed that the sale deed would be executed in execution still that would not cause any substantial loss to the defendant because if ultimately the defendant succeeds in appeal, the sale deed would automatically become nullity. Thus, application being devoid of any merit, stands dismissed.”

6. However, the observations, so made by learned First Appellate Court are erroneous, as the same have been made without taking note of the emerging situation, on account of operation of the judgment and decree under appeal, having not suspended, during the pendency of the appeal.

7. Learned counsel for the petitioner-defendant has assiduously submitted that the questioned agreement is shady one. It was, though, allegedly executed on 07.11.2014, but however, the suit was filed on 30.11.2017. It was a time barred suit and more particularly, it is to be considered that entire amount of consideration was passed on and the possession of the suit property was delivered to the purchaser.

8. However, since the appeal is pending before learned First Appellate Court, it shall not be appropriate to examine any contention on merits, at present, but at the same time, interest of the petitioner-defendant, who had challenged the judgment and decree by way of an appeal, ought to be taken into consideration.

9. The appeal was filed, but no order relating to the stay, as prayed for, was granted and it was after about a period of 11 months, vide impugned order dated 16.11.2023, the application was dismissed. The reasoning given by learned First Appellate Court is not satisfactory.

10. The Court, ought to take into consideration that it is the statutory right exercised by the petitioner-defendant, by way of filing of the appeal and it is obligatory for the Court to adjudge the rights of the parties, at the earliest, by following the principles of law and equity. May it be not decided, at the earliest, but whensoever the order is passed, the Court is to take into consideration, the very fact of the decree holder, resorting to the execution of the decree and taking further steps of creating third party rights and to frustrate the very purpose of filing of the appeal. Creation of third party rights, may also lead to multiplicity of litigation.

11. In the given circumstances, irreversible and irreparable damage, qua the rights of the petitioner-defendant, in the suit property, may be caused. If the sale deed is executed and further rights are created, it may further give rise to another round of litigation.

12. Considering all the aforesaid circumstances, in order to balance the equities and to meet ends of justice and to protect the suit property, during the pendency of the First Appeal, the present revision petition, as such, is hereby allowed and the impugned order is set aside. The application filed by the petitioner-defendant, is allowed and the operation of the judgment and decree dated 22.12.2022 is hereby stayed, till the decision of First Appeal pending before learned First Appellate Court.

13. However, the aforesaid observations, are circumscribed only for the purpose of disposal of the application for staying the operation of the judgment and decree and learned First Appellate Court, shall proceed further to decide the appeal, being uninfluenced by any of the observations, made aforesaid.

Order accordingly.

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