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Riyaz Ahmad v. Mohd. Yahia Kurashi & Others - WRIT - C No. - 57828 of 2007  RD-AH 18344 (27 November 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 6
Civil Misc. Writ Petition No. 57828 of 2007
Mohd. Yahia Quresi & Ors.,
Hon. Dilip Gupta, J.
The judgment-debtor has filed this petition for setting aside the order dated 30th August, 2007 passed by the Judge, Small Cause Courts, Gorakhpur in Execution Case No. 7 of 2000 and the order dated 22nd September, 2007 by which the Civil Revision that had been filed to set aside the aforesaid order had been rejected.
The petitioner Riyaz Ahmad was plaintiff No. 1/1 in Original Suit No. 1021 of 1989 in which a counter claim has also been filed by the defendants. The suit was dismissed but the counter claim was allowed and the plaintiffs were directed to vacate the premises and give its possession to the defendants within three months by means of the judgment and decree dated 12th July, 2000. Civil Appeal No. 30 of 2000 that had been filed by the plaintiffs against the aforesaid judgment and decree was dismissed on 15th February, 2003. Second Appeal No. 552 of 2003 was also dismissed for want of prosecution and the Special Leave Petition was also dismissed on 11th May, 2007.
Earlier, Shekh Shakil Ahmad plaintiff No. 1/3 had filed objections under Section 47 of the Code of Civil Procedure (hereinafter referred to as ''CPC') raising an issue about the jurisdiction of the Trial Court to decide the counter claim of the defendants. This objection was rejected by the Executing Court as well as by the Revisional Court. Civil Misc. Application No. 712 of 2007 that had been filed in this Court under Article 227 of the Constitution for setting aside the aforesaid order was also rejected on 5th September, 2007.
An application under Order 21 Rule 29 CPC was then filed by the petitioner for stay of the execution. It was stated that Original Suit No. 284 of 2007 had been filed by him along with Shahida Ahmad for partition before the Civil Judge (Senior Division) in which temporary injunction was granted and so the Court should stay the execution of the decree until the suit was decided. The said application was rejected by the order dated 30th August, 2007 and the Civil Revision that had been field to set aside the aforesaid order has also been rejected. The Courts below have given cogent reasons for rejecting the application. The suit was not pending in the same Court which passed the decree and so the provisions of Order 21 Rule 29 CPC were not applicable. In this connection reference may be made to the decision of the Supreme Court in Shaukat Husain Vs. Smt. Bhuneshwari Devi, AIR 1973 SC 528 wherein it was observed:-
"Rule 29 clearly shows that the power of the Court to stay execution before it flows directly from the fact that the execution is at the instance of the decree-holder whose decree had been passed by that court only. If the decree in execution was not passed by it, it had no jurisdiction to stay the execution." (emphasis supplied)
In Krishna Singh Vs. Mathura Ahir & Ors., AIR 1982 SC 686 it was observed:-
"There is yet a very formidable defect in the order passed by the Civil Judge. Under Order XXI, Rule 29 jurisdiction is vested only in the Court which had passed the decree to stay its execution. In the instant case, the suit which was the subject matter of the appeal was decided by the Munsiff, Varanasi who had passed the decree. Therefore, an application for stay of execution, if any, could have been made before that Court and not before any other Court, including the Civil Judge."
Learned counsel for the petitioner has not been able to point out any infirmity in the orders passed by the Courts below which may warrant interference by this Court under Article 226/227 of the Constitution.
The writ petition is, accordingly, dismissed.
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