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2022 DIGILAW 962 (JHR)

Md. Imran v. State of Jharkhand

2022-08-03

RAJESH SHANKAR

body2022
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order as contained in memo No. 1088 dated 25.11.2020 passed by the respondent No. 3 whereby while deputing the respondent No. 4 as magistrate, the respondent No. 5 has been directed to get the petitioner and others vacated from the house situated over the land appertaining to Khata No. 01, Plot No. 944, Mouza-Kapali, Thana No. 332, District-Seraikella-Kharswan, measuring an area of 0.02475 Decimal in terms with the judgment dated 29.02.2020 and decree dated 16.03.2020 passed by the Civil Judge (Jr. Div.) at Seraikella in Title Suit No. 52/2012. By way of amendment in the present writ petition, the petitioner has also prayed for quashing the order as contained in memo No. 1160 dated 10.12.2020 passed by the respondent No. 3. 2. Heard learned counsel for the parties and perused the relevant materials available on record. The respondent No. 6 filed Title Suit No. 52/2012 in the Court of the Civil Judge (Jr. Div.) at Seraikella seeking declaration of her right and title over the said land as well as for eviction of the petitioner and others from the said land and to hand over possession of the same in her favour. The said suit was allowed vide judgment dated 29.02.2020 declaring title of the said land in favour of the respondent No. 6 and directing the petitioner and others to hand over the possession of the same in her favour within 60 days, failing which liberty was given to her to take appropriate action in accordance with law. Accordingly, the decree was prepared on 16.03.2020. 3. The limited issue raised in the present writ petition is that at the request of the respondent No. 6, the respondent No. 3 should not have proceeded to direct the petitioner and others to vacate the house and the land in question by passing the impugned orders. Moreover, the respondent No. 6 should have taken steps for execution of the judgment and decree passed in the said suit in accordance with law. The petitioner and others have already preferred appeal being Civil Appeal No. 40/2020 in the Court of learned Principal District Judge, Seraikella-Kharswan against judgment dated 29.02.2020 and decree dated 16.03.2020 passed in Title Suit No. 52/2012 which is still pending. The petitioner and others have already preferred appeal being Civil Appeal No. 40/2020 in the Court of learned Principal District Judge, Seraikella-Kharswan against judgment dated 29.02.2020 and decree dated 16.03.2020 passed in Title Suit No. 52/2012 which is still pending. On the other hand, it has been stated by the respondent No. 6 in her counter affidavit that Execution Case No. 01/2021 has been filed for execution of judgment dated 29.02.2020 and decree dated 16.03.2020 passed in Title Suit No. 52/2012, which is presently pending in the Court of the Civil Judge (Jr. Div.)-I at Seraikella. 4. Under the aforesaid facts and circumstances, this Court is of the view that the impugned order dated 25.11.2020 passed by the respondent No. 3 directing the petitioner and others to vacate the house and the land in question in favour of the respondent No. 6 in terms with judgment dated 29.02.2020 and decree dated 16.03.2020 passed in Title Suit No. 52/2012 is without jurisdiction as the executing authority has no right to directly take steps for execution of the judgment and decree passed by the Civil Court, rather the same have to be executed as per due process of law i.e. by way of an order passed in the execution case in terms with the judgment and decree. Since the execution case filed by the respondent No. 6 is still pending in the Court of the Civil Judge (Jr. Div.)-I at Seraikella, she is at liberty to pursue the same. Suffice to say that by passing the impugned orders, the respondent No. 3 has committed serious error in not following the established procedures of law and hence the same cannot be sustained in law. 5. Accordingly, the impugned orders as contained in Memo No. 1088 dated 25.11.2020 and Memo No. 1160 dated 10.12.2020 passed by the respondent No. 3 are hereby quashed. 6. The present writ petition is allowed.