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ALI SHER versus MOHAMMAD INAM & OTHERS

High Court of Judicature at Allahabad

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Ali Sher v. Mohammad Inam & Others - MATTERS UNDER ARTICLE 227 No. 242 of 2005 [2005] RD-AH 7827 (20 December 2005)

 

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

"Reserved"

Civil Misc. Application No. 242 of 2005.

Ali Sher                                                                              ...........Applicant.

Versus

Mohammad Inam and others                                           ......Respondents.

............

Hon'ble Anjani Kumar, J.

By means of present application under Article 227 of the Constitution of India,  the applicant has prayed for the following reliefs :-

"It is, therefore, most respectfully prayed that this Hon'ble Court be graciously pleased to direct the Executing Court, Civil Judge, (Senior Division), Saharanpur to execute the decree passed in Suit No. 192 of 1973 and upheld by the Apex Court without entertaining and deciding any application or objection filed after 05.05.2004, when the objections filed by the respondent Nos. 2 to 8 were finally rejected, and/or to pass such and further orders as this Hon'ble Court deems fit and proper in the circumstances of the case."

The facts leading to the filing of the present application under Section 227 of the Constitution of India are that the applicant-decree holder filed a suit being suit no. 192 of 1973 against the predecessor-in-interest of the respondent nos. 2 to 6 for specific performance of the agreement dated 4th September, 1970 for re-conveyance of the Bhumidhari plot nos. 539, 540, 541, 542, 545, 557/2 and 546, the total area of which comes 9 Bighas and 10 Biswas.  The said suit was ultimately decreed by the appellate Court vide its order dated 14th July, 1979 while deciding the appeal filed by the applicant against the order dated 29th April, 1978 by which the suit filed by the applicant was dismissed.  The defendant-respondent preferred second appeal being second appeal no. 2841 of 1979 against the judgment and decree dated 14th July, 1979 before this Court, which was dismissed by this Court vide its order dated 19th February, 2001.  During the pendency of the aforesaid second appeal, defendant-respondent Naim Khan had died leaving behind the respondent nos. 2 to 8 as his legal representatives, who were substituted in his place.

Aggrieved by the order dated 19th February, 2001, passed by this Court, the defendant-respondent nos. 2 to 8 filed a Special Leave to Appeal No. 13307 of 2001 before the Hon'ble Supreme Court, which was dismissed by the Apex Court.  That after the decree passed between the parties become confirmed at the level of Apex Court, the applicant-decree-holder filed an application dated 8th March, 2001 before the executing Court.  In rebuttal, the defendant-respondent nos. 2 to 8 filed separate objections under Section 47 and 151 of the Code of Civil Procedure contesting the aforesaid execution application filed by the applicant dated 8th March, 2001.  The executing Court rejected the objections filed by the defendant-respondent being misc. case no. 57 of 2002 and 74 of 2002 vide separate orders dated 13th may, 2002.  Thereafter the judgment debtor-respondent no. 1 filed revision being civil revision no. 76 of 2002 against the order dated 13th May, 2002 passed in misc. case no. 74 of 2002 before the revisional Court, but the defendant-respondent nos. 2 to 8 did not file any revision against the order dated 13th May, 2002 passed in misc. case no. 57 of 2002.  The revisional Court vide its oder dated 15th November, 2002 allowed civil revision no. 76 of 2002 filed by respondent no. 1 and directed the respondent nos. 2 to 8 to execute a sale deed in respect of the plots in dispute in compliance of the alleged agreement dated 8th December, 1973 between the applicant and respondent no. 1.  It further directed that in case of failure on their part, the respondent no. 1 could get the sale deed executed through Court.  

It is submitted by the applicant-decree holder that the respondent no. 1 was neither party to the suit, nor representative of any of the parties.  In fact the respondent no. 1 and respondent nos. 2 to 8 had been colluded, therefore the objection under Section 47 of the Code of Civil Procedure filed by respondent no. 1 was not maintainable and similar is the order passed by learned District Judge dated 15th November, 2002, which was wholly illegal and without jurisdiction.

Aggrieved by the order dated 15th November, 2002, passed by District Judge, the applicant-decree holder filed civil misc. writ petition no. 52346 of 2002 before this Court for quashing of the order dated 15th November, 2002.  This Court vide its order dated 10th March, 2003 allowed the writ petition filed by the applicant and quashed the order dated 15th November, 2002.  This Court further directed the executing Court to proceed with the execution case no. 5 of  2001.  It is further alleged by the applicant that since the respondents, who have lost the case up to the Apex Court, want to delay the execution of the decree, therefore respondent nos. 2 to 8 filed their second objection dated 30th April, 2003, under Section 47, read with Order XXI, Rule 34 of the Code of Civil Procedure in execution case no. 5 of 2001, which was registered as misc. case no. 74 of 2003.  The executing Court allowed the misc. case no. 74 of 2003 registered on the second objection of respondent nos. 2 to 8 and dismissed the execution case no. 5 of 2001 filed by the applicant vide common order dated 6th August, 2003.

Aggrieved by the order dated 6th August, 2003, passed by the executing Court, the applicant filed misc. appeal no. 130 of 2003 dismissing the execution case no. 5 of 2001, as well as the applicant also filed civil revision no. 34 of 2003 against the order dated 6th August, 2003 by which the objection under Section 47 of the Code of Civil Procedure filed by the respondent nos. 2 to 8 was allowed.  The learned District Judge vide its order dated 5th May, 2004 allowed both the appeal as well as the revision filed by the applicant.

Against the order dated 5th May, 2004, passed by learned District Judge, the respondent nos. 2 to 8 preferred civil misc. writ petition nos. 18782 of 2004 and 18784 of 2004 before this Court, whereby the misc. appeal no. 130 of 2003 and revision no. 34 of 2003 were allowed.  These writ petitions are still pending and no interim orders have been granted by this Court.  It is further submitted by learned counsel for the applicant that when the respondent nos. 2 to 8 failed to obtain an interim order by this Court in the aforesaid two petitions, they filed an application dated 15th April, 2005, paper no. 106-C on similar grounds to those contained in their earlier objection dated 30th April, 2003.  As no orders were passed on the application dated 15th April, 2005 filed by the respondent nos. 2 to 8, they filed another application dated 2nd May, 2005 purporting to be an application under Order XXI, Rules 97 and 99, read with Section 151 of the Code of Civil Procedure, which was registered as execution misc. case no. 41 of 2005.  The aforesaid application was accompanied by application of interim relief for staying the proceedings of execution case no. 5 of 2001, which as stated above, was directed to proceed after long drawn litigation between the parties.  That 3rd May, 2005 was the date fixed in the execution case no. 5 of 2001, therefore hearing of execution misc. case no. 41 of 2005 was deferred with a direction to the applicant's counsel file his objection.  The Court further directed the respondent no. 1 to take steps to service upon the respondent nos. 2 to 8, who have also been arrayed as respondents in execution misc. case no. 41 of 2005.  Learned counsel for the applicant-decree holder filed his objection in the aforesaid execution misc. case no. 41 of 2005 on 2nd May, 2005 since there was no interim order.  The applicant has also submitted a typed draft sale deed on General Stamp of Rs.1,36,300/= before the executing Court on 2nd May, 2002 when all the objections filed by the respondents in the execution case no. 5 of 2001 were rejected by the executing Court.  But for one or the other reason, as stated above, the sale deed could not be executed by the Court and the decree which has passed on 14th July, 1979 is still pending for execution. It is further submitted that respondent no. 1 and respondent nos. 2 to 8 are in collusion with each other.  That on 3rd May, 2005, which is the date fixed before the executing Court, the executing Court postponed the hearing of the execution case up to 12th May, 2005, who after considering the maintainability of the applications filed by respondent no. 1 and respondents 2 to 8 and also in the execution misc. case no. 41 of 2005.  That on 12th May, 2005, the hearing of the execution misc. case no. 5 of 2001 was adjourned to 25th May, 2005.  Again on 25th May, 2005 nothing could take place and 8th July, 2005 was fixed as the next date and on 8th July, 2005, the case was adjourned to 29th July, 2005.  This date of 29th July, 2005  was again adjourned to 5th August, 2005 and again it was adjourned and 9th August, 2005 was the date fixed.  This date of 9th August, 2005 was again adjourned and 25th August, 2005 was the date fixed by the executing Court.

Considering the facts and circumstances of the case and the fact that similar objections have already been rejected up to this Court, I direct the executing Court/Civil Judge (Senior Division), Saharanpur to decide the case pending before it, namely execution misc. case no. 5 of 2001 and execution misc. case no. 41 of 2005 in accordance with law, if there is no interim order from any superior Court within a period of three months from the date of presentation of a certified copy of this order before it.

With the aforesaid direction, this writ petition succeeds and is allowed.  The direction issued accordingly.

Dated:

Rks.


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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