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Sohbat & others v. Chhotu & others - WRIT - C No. 4503 of 1980 [2004] RD-AH 960 (29 September 2004)


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Court No.51

Civil Misc. Writ Petition No.4503 of 1980

Sobbat and others Vs. Chottue and others

Hon'ble V.C.Misra,J.

This writ petition has been filed by the petitioner seeking relief for issuance of a writ of certiorari quashing the impugned orders dated 8.12.1976  (Annexure No.2 to the writ petition) passed by the learned Munsif, Mohammadabad, Azamgarh  and dated  21.1.1980 passed by the learned Vth Additional District Judge, Azamgarh (Annexure No. 6 to the writ petition).

The facts of the case in brief are that the suit for permanent injunction was decreed by the trial court against the petitioners-defendants on 11.12.1971.  On 20.3.1972 an execution application was filed under Order 21 Rule 32 C.P.C. against this order.  An appeal was filed by the petitioners-defendants, which was dismissed on 26.8.1974.  The execution court on the application of the decree-holders-respondents passed an order dated 8.12.1976 punishing the petitioners-defendants by means of the attachment of the property and they were also subject to the imprisonment of seven days.  An appeal was filed before the learned District Judge and the petitioners-judgment-debtor was allowed to remove their structure within a period of one month. On 28.11.1978, an application was filed on behalf of the judgment-debtor that the structure had been removed on 1.12.1978.  

The decree-holder-defendants moved an application that inspite of the undertaking given by the judgment-debtor of the removal of the structures, they had not removed their structure. In order to ascertain as to whether the decree dated 1.12. 1978 had been flouted or not, a commission was issued by the appellate court.  The Commission reported that the judgment-debtor had not removed their structure rather they had constructed a new wall and but a thatch over it.  The judgment-debtor again sought ten days' time for the removal of the construction and for handing over the possession to the decree-holders.  Thereafter, another commission was issued by one Sri  Mirza Imtiyaz Beg, who visited the spot and found (as per his report) that the construction encroaching upon the land of the decree-holders had been demolished, but there was a fodder cutting machine over the land in question.  In view of the said report, the appeal of the judgment-debtor-petitioners was dismissed by the V Additional District Judge on 2.2.1979, against which a revision was filed.   The same was allowed vide order dated 10.8.1979 on the ground that the existence of  a fodder cutting machine was  never complained of,  in the  earlier application under  order 21 Rule 32 C.P.C. and the judgment-debtor never had an opportunity to contest the report the Commissioner Sri Mirza Imtiyaz Beg.

On remand the appellate court vide its impugned order dated 21.1.1980 relying upon the earlier reports, held that the action of the judgment-debtor showed that they were not inclined to obey the prohibitory decree which was borne out from the record of the case.  The Additional District Judge did not consider the Second Report of the Commissioner Sri Beg.  Learned appellate court had appointed a Commission to report about the existing possession and a report was submitted by an other Commissioner Sri Ramjag on 15.1.1980.  The commission did not find any structure of the petitioners-judgment-debtor inexistence on the land in dispute belonging to decree-holders including the fodder cutting machine. The petitioners-judgment-debtors had purged themselves of the contempt and had kept their undertaking.

Being aggrieved by the impugned order the petitioners-judgment-debtor preferred this writ petition.  Counter and rejoinder affidavits have been exchanged between the parties.  However, in the year 1989 the petitioner no.1died ageist whom the proceedings has been initiated in the year 1989.  Again in the year 1998 the petitioner no.2 died against whom the proceedings has been initiated.

I have looked into the record and find that the third Commission Report dated 15.1.1980 was in favour of the petitioners-debtor, who had found that there was no construction inexistence of the petitioner on the land in dispute of the respondents-, neither any objection had been filed by the decree-holders-respondents to the said report.  There was no basis on which the appellate court should have proceeded  and passed the order dated 21.1.1980.   More so, since the petitioner nos. 1 and 2 both have died during the pendency of the writ petition and the surviving petitioners no. 3 to 5  did not interfere at all with the land in dispute, which was subject matter of the suit nor with the execution of the decree nor they have done anything further by way of interference with the land in dispute after the report of the Commissioner they cannot be held liable any of such charges gone under the Contempt proceedings nor the contempt proceedings go by inheritance

In view of the said facts and circumstances and observations made hereinabove, the impugned orders dated 8.12. 1976 (Annexure No.2 to the writ petition) passed by the Munsif, Mohammadabad, Azamgarh and order dated 21.1.1980 passed by the then Additional District Judge, Azamgarh (Annexure No.6 to the writ petition) are hereby quashed.  The writ petition is allowed.  No orders as to costs.

Dated: 29.9.2004



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