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2015 DIGILAW 2100 (ALL)

Dropadi Devi v. Maya Devi

2015-07-24

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard Sri M.L. Maurya, learned counsel for the petitioner. 2. Amendment application filed today is taken on record. Amendment application is allowed. Let amendment be incorporated during the course of the day. 3. By means of the present writ petition, the petitioner is challenging the order dated 4.3.2015 passed in Misc. Case No. 1/23/11 wherein the execution application was admitted and parvana Dakhal has been issued. It appears that an objection was filed by the petitioner in execution that the release application under the U.P. Act No. 13 of 1972 cannot proceed for the reason that the premises in question was acquired under 'Malin Basti Act'. 4. This issue was adjudicated by the prescribed Authority and a finding has been recorded that the premises in question was never acquired under 'Malin Basti Act'. Against the order of Prescribed Authority, the petitioner has filed an appeal which has been dismissed for want of prosecution on 21.5.2014. It is admitted case of the petitioner that she has filed an application for restoration of the appeal on 31.5.2014 which is pending consideration. There is no averment in the writ petition that the petitioner had pursued her restoration application since after 31.5.2014. It was incumbent upon the petitioner to get the appeal restored. 5. Learned counsel for the petitioner has relied upon the judgment of the Apex Court in (2001)6 SCC 534 Dhurandhar Prasad Singh vs. Jai Prakash University and others to submit that the objection under section 47 of the Act requires adjudication at the ends of executing court. It was well within the jurisdiction of Executing Court to see as to whether the decree is executable or not. As the premises in question does not fall under the Rent Control Act and hence the decree cannot be executed being nullity. 6. To deal with this submission, suffice is to say that a categorical finding of fact has been recorded by the Prescribed Authority to the effect that the premises in question has not been acquired by the Kanpur Development Authority under the 'Malin Basti Act' The petitioner has challenged this finding before the appellate court but the appeal has been dismissed for want of prosecution. It is not open for the executing court to look into the validity of the order passed by the Prescribed Authority. It is not open for the executing court to look into the validity of the order passed by the Prescribed Authority. In the facts of this case, the ratio of judgment of the Apex Court is not applicable. 7. So far as the order of the Execution Court is concerned, the issue as to whether the proceedings under Rent Control Act are maintainable or not is not the subject matter of decision in the execution case. No interference is required. The writ petition is dismissed. 8. Lastly, learned counsel for the petitioner submits that as Parvana has been issued, the petitioner is ready to vacate the premises. She may be given some reasonable time to vacate the premises in question so as to enable her to fetch an alternative accommodation. 9. In order to meet the ends of justice, this Court finds that the the petitioner shall vacate the premises in question on or before 30.11.2015 subject to following condition: - 10. The petitioner shall file an undertaking in the form of an affidavit alongwith certified copy of this order before the Prescribed Authority within a period of one week. In case, such an undertaking is filed, she shall be allowed to occupy the premises in question till 30.11.2015. In case, the petitioner fails to file the undertaking mentioned above or does not vacate within the time specified above, proceedings for eviction shall be undertaken in accordance with law.