Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 729 (ALL)

U. P. Automobiles Association v. R. N. Bhargava

2015-04-07

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. This petition has been filed under Article 227 of the Constitution of India for quashing proceedings of execution case no. 117 of 2012, pending before the court of Civil Judge (S.D.), Allahabad. 2. A perusal of the materials brought on record goes to show that original suit no.283 of 2009 was filed by Mr. R.N. Bhargava through power of attorney holder Mr. A.N. Bhargava, which has been decreed by the trial court on 22.10.2012, whereby defendant was directed to remove his possession from the premises in question and to handover the same to the plaintiff. This decree has been challenged by the petitioner by filing first appeal, which is pending. 3. Learned counsel for the parties agree that there is no interim protection granted by the appellate court in the first appeal. Pursuant to aforesaid decree, execution has been filed, which is registered as execution case no. 117 of 2012 and is proceeding. An objection under section 47 CPC in the said execution case has been filed by the petitioner, raising various grounds, which has been registered as Misc. Case No.69 of 1014. First paragraph of the objection is relevant and is reproduced: - "1. That Original Suit No.283 of 2009 is filed by Amar Nath Bhargava, alleging himself to be attorney holder of R.N. Bhargava Landlord but he signed the plaint as plaintiff of the suit. The alleged attorney deed, which empowered him to file original suit, is not brought on record. 4. Likewise Amar Nath Bhargava filed Execution Case abovenamed as decree holder/plaintiff. The execution application is not verified as per requirement in law and the alleged attorney deed is not brought on record, as such it deserves to be rejected." 4. This objection of the petitioner has been rejected by the trial court and arising out of such objection, a civil revision no.457 of 2014 has been filed, which has been dismissed by this court on 16.10.2014, vide following order: - "1. Heard Sri Krishna Mohan, learned counsel for the revisionist and perused the record. 2. This is a revision under Section 115 C.P.C. preferred against rejection of objection filed by defendant-revisionist in execution proceedings i.e. Execution Case No.69 of 2014. 3. Heard Sri Krishna Mohan, learned counsel for the revisionist and perused the record. 2. This is a revision under Section 115 C.P.C. preferred against rejection of objection filed by defendant-revisionist in execution proceedings i.e. Execution Case No.69 of 2014. 3. It is said that Power of Attorney, on the basis whereof original suit no.283 of 2009 was filed, was not a valid document and secondly defendant is neither a legal nor juristic personality and, therefore, no suit in the name of defendant is permissible. The Execution Court has considered the matter and observed that these aspect were open to be seen in original suit itself. Once the suit has been decreed and judgement and decree has attained finality, the Execution Court cannot look into those issues since Court of execution cannot go beyond decree. I find no patent flaw in the impugned order. 4. Learned counsel for the revisionist also could not point out any illegality, material irregularity or jurisdictional error justifying interference by this Court in the impugned order. 5. Dismissed." 5. Learned counsel for the petitioners submits that execution has to be applied, in terms of Order 21 Rule 10, read with Order 3 Rule 1 & 4 CPC, in the manner prescribed. It is alleged that as there is no authorization in favour of Mr. A.N. Bhargava to apply for execution, therefore, the entire execution proceedings, initiated at his instance, is without jurisdiction. Learned counsel for the petitioner has also produced copy of the power of attorney dated 29.8.2008, which has been annexed along with execution case, and the same is retained and made part of the record. Learned counsel for the petitioner further submits that a subsequent objection has also been filed by the petitioner before executing court on 2.4.2015, copy of which has been produced by learned counsel for the petitioner and the same is made part of the record. Para 2 of the said objection is reproduced: - "2. That in the present case R.N. Bhargava, who is decree holder, has not filed the present execution application as it is axiomatic from the perusal of the Vakalatnama that R.N. Bhargava has not signed over the execution application and Vakalatnama. Thus the execution application is not maintainable in the eye of law." 6. That in the present case R.N. Bhargava, who is decree holder, has not filed the present execution application as it is axiomatic from the perusal of the Vakalatnama that R.N. Bhargava has not signed over the execution application and Vakalatnama. Thus the execution application is not maintainable in the eye of law." 6. Learned counsel for the petitioner submits that the proceedings of execution have not been applied by the decree holder, and thus execution itself is not validly instituted, and the entire execution proceedings are liable to be quashed. 7. Sri Rahul Shripat, learned counsel appearing for the respondents, on the other hand, submits that objection, with regard to valid initiation of the execution proceedings, had been set up as a ground in the proceedings under section 47 CPC, which has already been rejected and affirmed by this court vide order dated 16.10.2014. He submits that once such an objection has been rejected, which issue has not been challenged any further, it is not open for this court to examine the same question all over again in the present petition. 8. In rebuttal, learned counsel for the petitioner submits that the objection, which was taken by the petitioner previously in execution proceedings was separate and distinct from the plea, which is taken in the present petition, and therefore, this petition is maintainable, as it is neither hit by the principle of resjudicata nor by the principle of issue estoppel. It is also submitted that in the objection, it has merely been stated that execution has not been verified and the plea, that it has not been validly applied, had not been taken and considered. 9. Having considered the respective submissions advanced by learned counsel for the parties, this court finds that a decree for eviction has been passed by the competent civil court, against the petitioner, and in first appeal filed against it, no interim protection has been granted. The suit as well as execution proceedings have been filedpplied on behalf of Sri R.N. Bhargava by his brother Mr. A.N. Bhargava, on the basis of power of attorney. Decree in the suit has been passed, and objection raised on this count, in proceedings under section 47 has already been rejected. The suit as well as execution proceedings have been filedpplied on behalf of Sri R.N. Bhargava by his brother Mr. A.N. Bhargava, on the basis of power of attorney. Decree in the suit has been passed, and objection raised on this count, in proceedings under section 47 has already been rejected. In opinion of the court, although it is contended that present petition has been filed on fresh/different grounds, but in substance, the argument advanced is same, which has already been rejected. Moreover, if it is accepted that a different plea in now being taken, as is submitted by the petitioner, then such a plea would also be barred by principles of constructive resjudicata. In such circumstances, this court does not find it to be a fit case for exercise of jurisdiction under Article 227 of the Constitution of India, as in the opinion of the court, remedy of the petitioner lies elsewhere. 10. In view of the above, this court declines to entertain this petition and the same is dismissed, accordingly.