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2016 DIGILAW 4 (ALL)

Mohd. Irfan v. Anil Kumar Saxena

2016-01-04

SUNEET KUMAR

body2016
JUDGMENT Suneet Kumar, J. The defendant-applicant has approached this Court assailing the order dated 8 December 2015 passed by the Executing Court, Moradabad in Execution Case No. 02 of 2008 rejecting the objection filed under Section 47 of the C.P.C.. The court below upon hearing the parties, recorded as follows: "Evidence available on record shows that against the judgment and decree dt. 24.9.08 passed in S.C.C. Suit no. 13/2007 (Anil Kumar Saxena & Ors. Vs. Mohd. Irfan & Ors.. D.D/defendants have filed Misc. Case No.20/2010 Mohd. Irfan & Ors. Vs. Anil Kumar Saxena & Ors. under Order 9 Rule 13 CPC which was rejected on 15.11.2010 in his absence and for the restoration of Misc. Case No. 20/2010 Mohd. Irfan & Ors. Vs. Anil Kumar Saxena & Ors. D.D./defendants have filed Misc. Case No.48/2010 which was also dismissed on 10.01.2011 and for its restoration he has filed Misc. Case No.6/2011 and after allowing of both the Misc. Case No.6/2011 and Misc. Case No.48/2010 by the Court, the case has been fixed for hearing on Misc. Case No. 20/2010 Mohd. Irfan & Ors. Vs. Anil Kumar Saxena & Ors. which was dismissed on 30.8.2011 due to absence of defendants D.D. Now for restoration of Misc. Case No.20/2010 Mohd. Irfan & Ors. Vs. Anil Kumar Saxena & Ors., D.D./defendants have moved Misc. Case No.49/2011. All these facts shows that D.D. is in habit of moving restoration applications against and again and getting those applications rejected deliberately and thereby causing delay in the disposal of this execution case. Application moved by the D.D. under Section 47 C.P.C. challenging the validity of execution case arising out of decree passed in SCC Suit no.13/2007, has been rejected by this Court on 25.03.2015 after hearing the parties and later on it was challenged in the Hon'ble High Court. So, the order dt. 25.3.2015 passed in Misc. Case No. 15/2014 has become absolute and D.D./defendants have not complied with the provisions of Sec. 17 of Provincial Small Causes Court Act. So, in view of above observation, this Court is of the considered opinion that the application moved the D.H. has got force and it is liable to be allowed. Order Application paper no.54/C moved by D.H. is hereby allowed. Issue writ of possession (PARWANA DAKHAI) to the concerned Amin, who will submit his report by 13.01.2016. So, in view of above observation, this Court is of the considered opinion that the application moved the D.H. has got force and it is liable to be allowed. Order Application paper no.54/C moved by D.H. is hereby allowed. Issue writ of possession (PARWANA DAKHAI) to the concerned Amin, who will submit his report by 13.01.2016. Necessary steps should be taken accordingly." Having due regard to the facts and circumstances of the case, I find that the order impugned does not suffer from any illegality, infirmity or jurisdictional error, this Court in supervisory jurisdiction under Article 227 of the Constitution declines to interfere with the impugned order. The petition is, accordingly, dismissed. No order as to costs.