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2022 DIGILAW 1374 (ALL)

Surendra Kumar Verma v. Abdul Malik

2022-08-30

ABDUL MOIN

body2022
JUDGMENT : 1. Vakalatnama filed by Shri Hari Anuj Bahadur Sinha, Advocate, on behalf of respondents no. 1 to 3 is taken on record. 2. Heard learned counsel for the petitioners and Shri H. A. B. Sinha, learned counsel for the respondents no. 1 to 3. 3. No notice is being issued to respondent no. 4 considering that the petitioners claim themselves to be the purchaser of the land in dispute from the respondent no. 4 and his interest would not be prejudiced by the order proposed be passed. 4. The instant petition has been filed challenging the order dated 27.05.2022, whereby the revision filed by the petitioners has been dismissed. Also under challenge is the order dated 17.02.2021 whereby the application for stay filed by the petitioners in Miscellaneous Case. No. 6 of 2016 has been rejected. 5. The case set forth by the petitioners is that an original decree was passed on 19.01.1987 which was for execution of the registered sale deed in favour of the plaintiff therein. An execution case has been filed which is still pending for consideration. The petitioners, claiming themselves to be the purchaser of the property in dispute, which is said to have been sold by the owner to one Smt Haleema who in turn sold it to Shri Naeem, the respondent no. 4 herein who by means of a registered sale deed sold the said property to the petitioners on 27.12.2014. The petitioners filed an application on 25.02.2016 in the pending execution case, a copy of which is annexure 18 to the petition, under Order 21 Rules 97, 98, 101 and 103 CPC read with section 151 CPC raising various objections to the execution case. The said application was registered as Miscellaneous Case. No. 6 of 2016. As the application was not decided and the execution proceedings were continued by the court below, an application for stay was filed by the petitioner on 05.12.2020, a copy of which is annexure 3 to the petition, which was registered as paper no. 111(Ga). The said application for stay has been rejected by means of impugned order dated 17.02.2021, a copy of which is annexure 2 to the petition on 27.12.2014. Being aggrieved the petitioners filed a revision which has also been rejected vide the order dated 27.05.2022, the copy of which is annexure 1 to the petition. 111(Ga). The said application for stay has been rejected by means of impugned order dated 17.02.2021, a copy of which is annexure 2 to the petition on 27.12.2014. Being aggrieved the petitioners filed a revision which has also been rejected vide the order dated 27.05.2022, the copy of which is annexure 1 to the petition. Still being aggrieved the instant petition has been filed. 6. Learned counsel for the petitioners contends, while placing reliance on various judgements, as have been annexed alongwith the petition, that when the petitioners have purchased the property during pendency of the execution case as such they acquire an interest in the property in dispute and consequently they are entitled to file an application under the provisions of Order 21 Rules 97, 98, 101 and 103 CPC read with Rule 151 CPC which is still pending with the court concerned, having been registered as Miscellaneous Case. No. 6 of 2016 and during pendency of the said application itself, as the execution proceedings were continuing, the application for stay filed by the petitioners in the said application/case has been rejected. 7. The argument is that once the case itself, which has been registered as Miscellaneous Case. No. 6 of 2016, is still pending as such there cannot be any occasion for the court below to have rejected the stay application and to have continued with the execution proceedings and thus it is in the fitness of things that the aforesaid application filed by the petitioners registered as Miscellaneous Case. No. 6 of 2016 be directed to be decided in accordance with law within a specified time. 8. On the other hand, Shri H. A. B. Sinha, learned counsel appearing for the respondents no. 1 to 3, has raised various objections to the maintainability of the application filed by the petitioners by placing reliance on various judgements of Hon'ble the Apex Court. He contends that when the application itself, as was filed by the petitioners, was not maintainable as such the court below has not committed any error in rejecting the application for stay and thus there is no infirmity in the orders passed by the court below. 9. He contends that when the application itself, as was filed by the petitioners, was not maintainable as such the court below has not committed any error in rejecting the application for stay and thus there is no infirmity in the orders passed by the court below. 9. Having heard learned counsel for the parties and having perused the record what is apparent is that in the execution proceedings which were initiated by the plaintiffs for execution of the original decree, an application has been filed by the petitioners contending themselves to be the subsequent purchases of the land in dispute by means of a registered sale deed dated 27.12.2014. The application was filed by the petitioners under provisions of Order 21 Rule 97, 98, 101, 103 and 151 CPC in February 2016. The said application has been registered as Miscellaneous Case. No. 6 of 2016. 10. Admittedly, the said application / case is still pending for consideration before the court below. As the execution proceedings were continuing, the petitioners were constrained to file an application for stay which has been rejected by the court below vide the impugned order dated 17.02.2021 and a revision filed against the same has also been rejected on various grounds. The fact of the matter remains that the application filed by the petitioners, registered as Miscellaneous Case. No. 6 of 2016, is still pending for consideration before the court below. Thus, it is in the fitness of things that the case itself be decided in accordance with law by the court concerned after hearing the parties concerned provided there is no legal impediment. 11. Accordingly, with the consent of the parties the instant petition is disposed of with the direction to the court concerned to decide the application filed by the petitioners registered as Miscellaneous Case. No. 6 of 2016 on the date fixed which is said to be 02.09.2022 or within next six weeks in accordance with law after hearing all the parties concerned. 12. Till the decision of the said case no final order shall be passed in the execution case. 13. The petitioners shall not seek any adjournment before the court below on any pretext whatsoever. In case any adjournment is sought by the petitioners the benefit of this order shall not be available and the execution court would be free to proceed with the proceedings and to pass orders.