Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 2322 (ALL)

Kanhaiya Lal v. District Judge, Hardoi

2019-10-01

RAJAN ROY

body2019
JUDGMENT : Rajan Roy, J. 1. Heard. 2. This petition has been filed under Article 226 of the Constitution of India challenging the judgment dated 20 May 2019 passed by the Executing Court in Execution Case No. 5 of 2017, Bhikhari Lal v. Kanhaiya Lal, and the judgment dated 13.8.2019 passed in Civil Revision No. 15 of 2019, by which revision of the petitioner has been dismissed. 3. Although a writ petition under Article 226 of the Constitution of India against the judgment orders passed by the Civil Court is not maintainable in view of the judgment of the Supreme Court in the case of Radhey Shyam and another v. Chhabi Nath and others 2015 (110) ALR 4 (SC), the petition, even if it is treated as one under Article 227 of the writ petition of India, lacks merits and, therefore, is liable to be dismissed for the reasons to be mentioned hereinafter. 4. Facts of the case are that the suit proceedings were initiated bearing No. 269 of 1988 by the erstwhile owner of the property in dispute for eviction of the petitioner-defendant and seeking possession thereof. The said suit was decreed in 1998. Thereafter the said plaintiff-owner sold off the property to two persons, one of whom Vijai Kant has been arrayed as opposite party No. 3 herein. Against the decree of 1998 first appeal was preferred and thereafter second appeal was preferred. The second appeal was dismissed only on 18.8.2007. Thereafter Vijai Kant, one of the purchasers of the property initiated execution proceedings on 24.8.2017 wherein the petitioner/judgment debtor filed objections under section 47, C.P.C. which was dismissed. A revision was filed by the petitioner against the said order which was also dismissed on 16.1.2019. No proceedings were undertaken by the petitioner in respect of the said dismissal of the objections under section 47 before the Higher Court. In the meantime i.e., after initiation of the execution proceedings, petitioner filed a suit bearing No. 550 of 2017 in the Court of Civil Judge (Jr. Div.), West, District Hardoi, arraying the two purchasers as defendants seeking an injunction against them for not dispossessing the petitioner-plaintiff. 5. In the meantime i.e., after initiation of the execution proceedings, petitioner filed a suit bearing No. 550 of 2017 in the Court of Civil Judge (Jr. Div.), West, District Hardoi, arraying the two purchasers as defendants seeking an injunction against them for not dispossessing the petitioner-plaintiff. 5. It is also not out of place to mention that after the dismissal of the objections under section 47 the petitioner, obviously in a desperate attempt to cling to the property in dispute which he had already lost way back in 1998, moved an application under Order XXI, Rule 29, C.P.C. for staying the execution proceedings on the ground of pendency of the suit proceedings bearing No. 550 of 2017. It is this application which was rejected by the Executing Court on 20 May 2019. While dismissing the application the Trial Court has considered the factual and legal aspects threadbare. It has recorded a finding that the filing of the suit and the subsequent application under Order XXI, Rule 29 is nothing, but a mala fide action actuated by the intent to deprive the decree holders and their successors in interest from enjoying the benefits of the property and to continue to enjoy the undue benefits in spite of the decree being against the petitioner-applicant. The Trial Court has also considered the legal position with regard to Order XXI, Rule 29 that the exercise of power thereunder is a discretionary one, and not a mandatory one and has accordingly declined to exercise its discretion in the facts of the present case. It has also observed that the subsequent suit is not pending in the same Court where the execution proceedings are pending as is necessary in view of the decision reported in Shaukat Hussain v. Smt. Bhubaneswari Devi, AIR 1973 SC 528 . The Executing Court has taken note of the attempt of the petitioner to frustrate the decree passed by the Civil Court way back in 1998. The revisional Court has also dealt with the matter appropriately and in detail referring to the provisions of Order XXI, Rule 29 and the law on the subject and has affirmed the decision of the Trial Court dismissing the application under Order XXI, Rule 29. The revisional Court has also dealt with the matter appropriately and in detail referring to the provisions of Order XXI, Rule 29 and the law on the subject and has affirmed the decision of the Trial Court dismissing the application under Order XXI, Rule 29. The Revision Court has held that the issues being raised in the proceedings under Order XXI, Rule 29 and the revision arising thereof have already been dealt within the proceedings of the original suit which stand affirmed upto the second appellate stage and have attained finality. 6. Considering the reasons given by the Courts below and the failure of the learned Counsel for the petitioner to put forth any plausible plea before this Court to interfere in the matter and also considering the fact that the purchasers of the property would step into the shoes of the decree holder, no fault is found by this Court in the orders passed by the Courts below for interference under Article 226 of the Constitution of India. It is high time the petitioner reconciled to his fate and abstained from resorting to such tactics which may land him in trouble. 7. At this stage learned Counsel for the petitioner submitted that an application for review of the judgment dated 18.8.2017 passed by this Court in second appeal arising out of the original proceedings is pending, but this aspect has not been noticed by the Courts below. Mere pendency of such review proceedings also do not come in the way in execution of the decree, especially when the review has not even been admitted, as informed by the learned Counsel for the petitioner himself. 8. The Writ petition is dismissed.