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2012 DIGILAW 1496 (ALL)

Kallo (Since Deceased) (Smt. ) & Others v. Fakhruddin (Since Deceased) & Others

2012-07-09

SUDHIR AGARWAL

body2012
Sudhir Agarwal, J.— 1. This writ petition is directed against the order dated 11.05.2012 passed by Civil Judge (Senior Division), Agra in Execution Case No. 16 of 1993 rejecting petitioners' application for recall of order dated 23.09.2011 passed on application No. 54C of respondent no. 1/3 under Order 22 Rule 10 of Code of Civil Procedure. 2. The application was filed seeking recall of order dated 23.09.2011 on the ground that copy of said application was never served upon petitioners-applicants and order has been passed without giving any opportunity of hearing and is an ex parte order. 3. The court below however has recorded a finding that copy of aforesaid Application No. 54C was served upon judgment-debtors on 03.09.2004 and thereafter due opportunity of hearing was afforded to all parties and after almost seven years since then the order was passed on 23.09.2011. This finding has not been challenged in the entire writ petition to be perverse or contrary to record. There is no averment in the entire writ petition that copy of application was not served upon petitioners on 03.09.2011. 4. Learned counsel for the petitioners further submitted that even on merits the court below has proceeded illegally with the execution inasmuch as the decree holder did not file any execution within time and substitution allowed was not legal. 5. In order to contend that execution was beyond time appropriate pleadings are absent. The suit was decreed on 02.02.1981. There is a vague averment that the execution application was filed in 1993 but no dates are given to show that application was filed beyond the period of limitation. The court below ex facie has not found the execution barred by limitation and, therefore, in absence of any specific pleadings on this aspect, I do not find any reason to entertain the above argument or even to find it worth consideration at this stage. In the present writ petition also the specific pleadings are missing. 6. Even otherwise this aspect, I am afraid, cannot be looked into in the present writ petition for the reason that order dated 23.09.2011 passed on Application No. 54C has not been challenged before this Court at all. 7. Moreover from the record it appears that one Fakhruddin filed Original Suit No. 430 of 1979 against the tenant Smt. Kallo seeking her eviction and the suit was decreed on 02.02.1981. 7. Moreover from the record it appears that one Fakhruddin filed Original Suit No. 430 of 1979 against the tenant Smt. Kallo seeking her eviction and the suit was decreed on 02.02.1981. It is not disputed that the judgement has attained finality having not been challenged before any higher court. Thereafter Sri Fakhruddin himself filed Original Suit No. 405 of 1992 seeking partition of property No. 23/459 Wazirpura Agra which included the part of premises subject matter of dispute in Original Suit No. 430 of 1979. In the meantime he died and his heirs are substituted. The partition suit was decided vide a compromise decree passed on 27.01.2003, as a result whereof the premises which was subject matter of Original Suit No. 430 of 1979 came in the share of applicants of Application No. 54C. It is pursuant thereto, application seeking their impleadment as judgment executor in Execution Case No. 16 of 1993 was filed. The said application filed in August, 2004/September, 2004 but could be decided by execution court only on 23.09.2011, i.e., after seven years after hearing both the parties. The only ground raised for seeking recall of said order is that the copy of application was not served upon petitioners which has been found incorrect by court below. The Court has observed that the said application was received by judgment debtor on 03.09.2004. As already said, this finding has not been shown perverse, thus the impugned orders warrant no interference. It is clear that petitioner's only attempt is to delay the execution proceedings even after more than three decades. 8. Now I come to the question of relief whereby the petitioners have challenged decree dated 02.02.1981. It is admitted that said decree having been become final since it was not challenged in any higher Court, I do not find any occasion whereby the petitioners can challenge the said decree after more than three decades. 9. The writ petition is thoroughly misconceived. Dismissed. _