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RAJESH KESHARI versus THE DISTRICT JUDGE, ALLAHABAD AND OTHERS

High Court of Judicature at Allahabad

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Rajesh Keshari v. The District Judge, Allahabad And Others - WRIT - C No. 28710 of 2006 [2006] RD-AH 17092 (3 October 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

    Court No.6

Writ Petition No.28710 of 2006

Rajesh Keshari  Vs.  The District Judge, Allahabad  and others

Hon'ble Tarun Agarwala, J.

The dispute relates to house No.344 (old)/600 (new) in Mutthiganj, in the city of Allahabad. It transpires that in the year 1971, a partition suit was filed by Smt. Kamla Devi against Shri Satish Chandra. The said suit was decreed on 29.5.1978 and the plaintiff, Smt. Kamla Devi was held to be a co-sharer to the extent of 1/2 share of the property in question and was entitled for a partition. The judgment debtor filed a civil appeal which was dismissed in the year 1980. The  second appeal filed before the High Court was also dismissed in the year 1982.

During the pendency of the second appeal, the decree holder filed an application for the preparation of the final decree. The judgment debtor filed an objection alleging that the property cannot be partitioned. The said objections was rejected holding that the property could be partitioned by metes and bounds. The judgment debtor filed another application raising fresh objections which was again rejected. The trial court eventually prepared a final decree in the year 1988 and soon thereafter, the decree holder filed an execution case for the execution of the final decree.

It transpires that the executing court issued a parwana on 24.11.2005. A report of the Amin was submitted to the effect that the judgement debtors were interfering and had locked the house, and therefore, prayed that a police force may be provided in order to execute the decree. An application was also filed by the decree holder for providing police force. At this stage, one of the sons of the judgment debtor, namely,  Om Prakash came forward with an objection holding that he had obtained an ex parte decree in his favour in the year 1983 restraining the decree holder from dispossessing him from the property in question. This exparte decree was never revealed during these proceedings. However, the objections filed by Sri Om Prakash was rejected by the executing court on 8.2.2006. Sri Om

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Prakash filed a revision before the District Judge, which was also rejected. Thereafter, he filed a writ petition which was dismissed by a judgment dated 20.3.2006. The matter did not end here and Sri Om Prakash filed a Special Leave Petition which was summarily dismissed  by an order dated 11.5.2006.  

After the dismissal of the writ petition by the High Court, the executing court issued a fresh parwana dakhal on 15.4.2006. Faced with the eviction, the second son of the original judgment debtor, Sri Rajesh Keshri, the present petitioner, filed Original Suit No.214 of 2006 and obtained an exparte injunction on 17.4.2006 restraining the decree holder from dispossessing the petitioner. After obtaining the exparte injunction, the petitioner filed an objection under Order 21 Rule 97, 98, 99  read with Rule 101 of the Code of Civil Procedure objecting to the execution of the decree on the ground that the petitioner was a tenant of the decree holder, and therefore, could not be evicted under the garb of the execution of a decree in a partition suit. The said objection was rejected by an order dated 29.4.2006, against which a revision was filed by the petitioner which was also rejected by an order dated 6.5.2006. Consequently, the writ petition.

It transpires that during the execution proceedings, the original  judgement debtor, Sri Satish Chandra died on 5.10.2002 and his heirs and legal representatives including the petitioner were substituted in place of the judgement debtor. This impleadment was done by an order dated 3.7.2003, i.e., prior to the filing of the present suit by the petitioner and prior to the filing of the objections.

  Heard Sri B.B. Paul, the learned counsel assisted by Sri A.P. Paul, the learned Counsel appearing for the petitioner and Sri Sankatha Rai, the learned  Counsel appearing for the respondents.

The learned counsel for the petitioner submitted that the petitioner was a tenant in his own right on a rent of Rs. 80/- per month and had also paid a sum of Rs.50,000/- as an advance to the decree holder, and therefore, could not be evicted in the execution of a decree passed in a partition suit No. 581 of 1971 as is clear from a perusal of the averments made in the plaint filed by the petitioner in Suit No.214

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of 2006 as well as in the objections filed by the petitioner before the executing court. This fact is, however, denied by the decree holder.

The learned counsel for the petitioner has placed reliance in the case of Noorduddin vs. Dr. K.L.Anand, 1995 (1) SCC 242 on the proposition that pending adjudication, the possession of the objector  should be maintained by an interim order of the Court till such time the objections are adjudicated. Further reliance was placed by the learned counsel in the case of  Kazi Akeel Ahmad Vs. Ibrahim and another, 1997 ACJ 1072, wherein the Supreme Court held that the investigation in the application under Order 21 Rule 97 becomes pointless upon the dismissal of the suit on merit.

In Anwarbi vs. Pramod D.A. Joshi and others, 2000(10) SCC 405, the Supreme Court held that an obstructionist in possession can only be dispossessed in accordance with law and that the decree holder was required to wait till the disposal of the objections of the obstructionist.

There is no quarrel with the aforesaid proposition enunciated by the Supreme Court. The objections of a third party or even that of a judgement debtor is required to be disposed of in accordance with law and no decree can be executed till the disposal of the objections.

In the present case, this Court finds that the objections raised by the petitioner were neither bonafide nor was justified.

From the aforesaid, I find that a new device has been initiated to ensure that the decree is not executed. After failing in all previous attempts and when faced with the stark reality of an eviction, an heir of the judgement debtor files a suit claiming himself to be the tenant.

This allegation of being a tenant, on the face of it, is an after thought and has no legs  to stand. The reason is simple. No averment has been

made by the petitioner, as to how and when, he came into the tenancy. Nothing has been shown as to whether the portion allegedly occupied by him, as a tenant, was the same premises that was occupied by his father or was different. No proof of tenancy has been filed to show prima facie that the petitioner is a bonafide tenant of the decree holder

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The allegations made by the petitioner that he is a tenant cannot be given a second thought for the reasons that the age of the petitioner as shown in the affidavit accompanying the writ petition is 39 years. The decree was issued by the trial court on 9.7.1978, and therefore, at that moment when the decree was issued, the petitioner was only 11 years old. Nothing has been stated by the petitioner, as to when he became the tenant  after the enforcement of the U.P. Act No.13 of 1972.  

Consequently, in the opinion of the Court, the contention raised by the petitioner in his plaint in Original Suit No.241 of 2006 as well as in his objections filed under Order 21 Rules 97, 98, 99 read with Rule 101 of the Code of Civil Procedure was misconceived and bereft of merit. The objections was rightly rejected by the Court below.

The suit filed by the petitioner, for the reasons stated aforesaid is a misuse of the process of the Court. The petitioner filed a suit by concealing material facts and obtained an ex parte injunction, and thereafter, filed objections under Order  21 Rules 97, 98, 99 read with Rule 101 of the Code of Civil Procedure. Clearly, the suit was barred. It was only open to the petitioner in his first instance to file  objections under Order 21 instead of filing a suit.

For the reasons stated aforesaid,  this Court is clearly of the  opinion that the original suit No.241 of 2006 filed by the petitioner was clearly barred by the provisions of  Order 21 Rules 97, 98, 99 read with Rule 101 of the Code of Civil Procedure. The petitioner  

abused  the process of Court. This Court, therefore, while exercising the supervisory powers under Article 227 of the Constitution of India not only dismisses the writ petition with cost of Rs.5,000/- but also quashes the suit No.241 of 2006 and its proceedings.

The writ petition is dismissed with the aforesaid  observation.

Dt: 3.10.06

SFH


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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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