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ROOP CHANDRA versus 9TH ADDITIONAL DISTRICT JUDGE, COURT NO. 9 AGRA AND ANOTHER

High Court of Judicature at Allahabad

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Roop Chandra v. 9th Additional District Judge, Court No. 9 Agra And Another - WRIT - A No. 18307 of 2006 [2006] RD-AH 8082 (20 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.28

Civil Misc. Writ petition No. 18307 of 2006

Roop Chandra     Vs.     9th Additional District Judge, Agra.

Hon'ble Krishna Murari, J.

Heard Sri H. M. Srivastava, learned counsel for the petitioner and Sri  A.P. Srivastava for the contesting respondent.

By means of this writ petition the petitioner has  made challenge to the order dated 24.3.2006,  6.3.2006 and 10.3.1995 passed by respondent no. 1. The order dated 24.3.2006 is an order passed by executing court for police aid for taking possession. The order dated 6.3.2006 is an order passed by executing court rejecting the application moved by the petitioner to appoint  an Amin  Commissioner for making an inspection with regard to boundary of the disputed property. There is another order of the same  date rejecting the objection  filed by the tenant/ petitioner under section 47  of  Code of Civil Procedure. The order dated 10.3.1995  is the order passed by Judges, Small Causes Court  deciding  of suit of landlord for arrears of rent and ejectment.

The facts as emerge out from the pleadings of the parties are that  SCC suit  filed by the respondent/ landlord for arrears of rent and ejectment of the petitioner was directed to proceed ex parte vide order dated 1.12.1992. Subsequently the tenant- petitioner put in appearance on 22.4.1993 through Mr. B.D. Padalia, Advocate and moved an application to recall the said order. On the same day trial court recalled the order and directed the tenant /petitioner to file a written statement. No written statement was filed and ultimately suit was decreed ex parte vide  judgment dated 10.3.1995. The decree was put in execution. In the execution proceedings  the petitioner filed objection under Section 47 of Code of Civil Procedure inter alia on the ground that decree  has been wrongly and fraudulently obtained;  decree holder is not the landlord of the premises in dispute;  the sale deed in favour of landlord is void and does not confer any title; by the said sale deed only half portion of the premises in dispute was purchased as such the land lord is not entitled to claim rent at the rate of Rs. 70/ per month, the decree is  void and  not liable to be executed. Another  application was moved by the tenant/  petitioner to appoint Amin commissioner for inspection and report about the boundary of the accommodation in dispute. The trial court vide two separate orders dated 6.3.2006 dismissed the objection under Section 47 Code of Civil Procedure and also application for appointment of Amin  Commissioner.

From the aforesaid fact it is apparent that inspite of having knowledge of proceedings of suit the tenant/petitioner did not contest the proceedings and allowed to put decree ex parte. Even thereafter, neither any application to recall the ex parte order was moved nor the same was challenged in revision. It was only when the decree was put in execution, he chooses to appear and contest the execution proceedings.

It is well  settled that execution court cannot go behind the decree except  where the decree is a nullity.  The execution court are bound to execute the  decree and cannot look  into the merit of the same  except where the question  is one relating to lack of inherent jurisdiction in the court which passed the decree. It has been held  by the  Hon'ble Apex Court  in the case of  Rameshwar Prasad Gupta vs. State of  U.P. 1996 All. C.J. 1418 that an executing court cannot go behind the order of decree under execution.

Section 47 of Code of Civil Procedure provides that all question arising out between the parties to the suit relating to execution discharge or suit of the decree shall be determined  by the court executing the decree and not by a separate suit. Thus  objection under section 47 Code of Civil Procedure are to be confined only the question relating to execution discharge or satisfaction of the decree. None of the ground taken by the tenant / petitioner  in the objection under Section 47 Code of Civil Procedure relates to any question regarding  execution discharge or satisfaction of decree nor they relate to the jurisdiction of the court which passed the decree. The ground taken in the objection under section 47 Code of Civil Procedure only refers to the merits of the judgment  put in execution.   Such ground cannot be allowed to be taken by the judgment debtor in execution proceedings.

In view of the above, there is no illegality in the order dated 6.3.2006 dismissing the objection under Section 47 Code of Civil Procedure filed by the tenant/petitioner. The application filed by the petitioner for appointment  an Amin  Commissioner  has also been rightly dismissed. The effort of the petitioner has been somehow  to  delay the execution proceedings.

In so far as ex parte order dated 10.3.1995 is concerned the same also does not call for any interference by this court inasmuch as the petitioner deliberately did not contest the proceedings and even thereafter did not file any application to recall the same or challenged it by filing  revision.

In so far as order dated 24.3.06 is concerned the same is only a consequential order in furtherance of execution proceedings and not open to challenge by the petitioner in the facts and  circumstances of the present case.

In view of the above, the writ petition lacks merits and stands dismissed.

20.4.2006.

g.


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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