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SANKATHA PRASAD DUBEY versus 9TH

High Court of Judicature at Allahabad

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Sankatha Prasad Dubey v. 9th- Addl. District Judge Varanasi And Ors - WRIT - C No. 6959 of 1999 [2006] RD-AH 279 (4 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no.26

CIVIL MISC. WRIT PETITION NO. 6959 OF 1999

Sankatha Prasad Dubey

versus

9th Additional District Judge, Varanasi and others.

HON. SHISHIR KUMAR, J.

The case of the petitioner is that a decree was passed in Suit No. 779 of 1950, which was instituted by the father of the present petitioner against Madan Mohan father of respondent no.3. The suit was decreed. The appeal no.134 of 1952, which was filed by late Madan Mohan, was dismissed. In that suit it was decided that Madan Mohan father of respondent no.3 shall not make any constructions adjacent to the house of the father of the present petitioner and if any constructions are to be made by Madan Mohan, it shall be made by leaving a space of 1,1/2 feet between the two houses. Subsequently, Madan Mohan filed another Suit no.152 of 1953 which was dismissed on 9.2.1959. Civil Appeal No. 212 of 1959 preferred by Madan Mohan was also dismissed on 17.5.1960 on the ground that the decree passed in Suit no.779 of 1950 shall operate as res-judicata.

In the meantime the father of the present petitioner as well as respondent no.3 expired. The dispute is now between the petitioner and respondent no.3. Respondent no.3 started some construction work in defiance of the decree passed in Original Suit No.779 of 1950. The petitioner, therefore, put the aforesaid decree to execution by moving an application no. 9 of 1995 purporting to be made under Order 21 Rule 32 C.P.C. Respondent no.3 moved an objection under Section 47 of the C.P.C. that the decree of prohibitory injunction is not executable against respondent no.3 as it was against his father. The trial court rejected this objection. Respondent no.3 filed a revision application. The revisional court has allowed the revision and held that the decree passed against Madan Mohan father of the revisionist shall not be executable under Order 21 Rule 32 C.P.C.

The writ petition was entertained and the interim order was granted in favour of the petitioner. Now the respondent has filed a counter affidavit. It has clearly been averred in paragraph 6 of the counter affidavit that they will abide by the decree passed by the court below. The relevant Para 6 of the Counter affidavit is quoted below:

"6. That without going into the merits of the case the respondent undertakes to abide by the terms of the decree passed in the Original Suit no.779 of 1950 which was modified on 29.8.1952 and which is sought to be executed by the petitioner and in view of this undertaking the interim order dated 23.2.1999 may kindly be vacated and the respondent be allowed to raise constructions strictly in accordance of the terms of the aforesaid decree."

In view of the aforesaid facts as the respondent himself has stated on affidavit that he will abide by the decree passed, therefore the present writ petition is disposed of accordingly with an observation that the order of the revisional court will not come in way of the execution of decree in Execution Case No. 9 of 1995.

4.1.2006

V.Sri/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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