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2024 DIGILAW 1528 (RAJ)

Rashid Mohd. S/o Shri Fateh Mohd. v. Kishore Kumar S/o Shri Banshi Lal

2024-11-07

NUPUR BHATI

body2024
ORDER : 1. The instant writ petition has been filed by the petitioner challenging the order dated 08.10.2024 (hereinafter as ‘the impugned order’) passed by Learned Civil Judge, Sr. Division, Aburoad (hereinafter as ‘learned Civil Judge’) whereby the learned Civil Judge has dismissed the application filed by the petitioner herein in Civil Execution Case no. 05/2024 under Section 151, Code of Civil Procedure, 1908 (hereinafter as ‘CPC’). The instant writ petition has been filed by the petitioner for quashing and setting aside of the impugned order with the following prayer: “It is therefore, most humbly prayed that this writ petition may kindly be allowed with cost and by an appropriate writ, order or direction: (A) The order dated 08.10.2024 passed by learned Civil Judge, Sr. Division, Aburoad may kindly be quashed and set aside. (B) The possession of the shop/premises in question from the petitioner with forcefully with the help of police and without adopting due process of law and giving opportunity of hearing, may kindly be restored. (C) The learned Civil Judge, Sr. Division, Aburoad may kindly be directed to decide the objection filed under Section 144 read with 0.21 R.99 and 101 CPC before closing the execution proceedings on the application filed by the respondent-judgment-debtor. (D) Any other appropriate relief which deemed fit in the facts and circumstances of the case may kindly be passed in favor of the petitioner.” 2. Briefly stated the facts of the case are that the petitioner herein was in possession of the premises in question being a tenant. However, vide judgment and decree dated 10.05.2012 (Annex.1) passed by the Civil Judge (Sr. Division), Abu Parvat in Civil Suit No. 71/2010 a decree was passed in favour of the respondent no. 1 herein (Plaintiff in the said suit) and respondent no. 2 to 4 were directed to hand over the possession of the suit premises to the respondent no. 1 herein in terms of the decree. Subsequently, Civil Execution case no. 3/2013 was filed by the respondent no. 1 herein and the said execution was decided by a compromise between the petitioner herein and the other party on 17.08.2022, wherein the petitioner was directed to vacate the suit premises by 16.08.2024 with condition that in case the premises are not vacated by the petitioner herein, the respondent no. 3/2013 was filed by the respondent no. 1 herein and the said execution was decided by a compromise between the petitioner herein and the other party on 17.08.2022, wherein the petitioner was directed to vacate the suit premises by 16.08.2024 with condition that in case the premises are not vacated by the petitioner herein, the respondent no. 1 would be at liberty to initiate appropriate proceedings before the court in accordance with law. As the said premises were not vacated by the petitioner herein, the respondent no. 1, in accordance with the compromise dated 17.08.2022, filed Civil Execution Case No. 5/2024 before the learned Civil Judge whereby the learned Civil Judge issued possession warrant and in compliance of the same on 12.09.2024, the physical possession of the premises was handed over to the respondent no. 1 and also a list of the goods kept in the said premises was prepared. Aggrieved by the same the petitioner herein preferred an application under Section 151, CPC for handing over the possession of the premises and the things kept there, which has been taken away from the petitioner. However, the learned Civil Judge dismissed the said application vide the impugned order (Annex.14). Aggrieved by the impugned order, the petitioner has filed the instant writ petition. 3. Learned counsel for the petitioner submits that the learned Civil Judge has erred in dismissing the application of the petitioner. He further submits that the proceedings adopted by the executing Court after lapse of 12 years from passing the judgment and decree is illegal and against the provisions of law, because the execution application has been filed on 27.08.2024 which is barred by law of limitation and the learned executing Court has not considered this aspect while issuing the possession warrant. 4. Learned Counsel for the petitioner further submits that while passing the impugned order learned executing Court has wrongly issued the possession warrant without issuing notice to the petitioner and without giving opportunity of hearing, because the third application of execution has been filed after two years of the earlier application and as per the provisions of law it is required to issue notice before issuing the possession warrant but the learned executing Court in a hasty manner, issued the possession warrant. He also submits that while the order sheet dated 02.09.2024 clearly shows that case was fixed for enquiry and service but contrary to it possession warrant has been issued on 03.09.2024 which is illegal and against the provisions of law. He further submits that the execution proceedings is pending before the learned Civil Judge while the sale Ameen has taken the police help from the Court of Additional Sessions Judge No. 1, Aburoad and on that basis the possession has been taken on 12.09.2024 without informing the petitioner. Thus, the proceeding initiated before the Court of Additional District Judge is illegal and against the provisions of law and therefore, on that basis the possession of the shop has been illegaly taken and same ought to be restored in favour of the petitioner. 5. Learned counsel for petitioner submits that petitioner has also filed the objection under 0.21, R.99 and R.101 of CPC for restoring the possession taken illegally and without deciding the objection the Executing Court has decided the proceedings finally on the application filed by the Judgment debtor. He further submits that it is duty of the executing Court to decide the objection filed on 19.09.2024 and thereafter any order is to be passed but in the present case without deciding the objection the order impugned has been passed and the learned execution Court is going to close the proceedings on the application filed by the respondent-judgment debtor, which is illegal and same deserves to be quashed and set aside. 6. Heard the counsel appearing on behalf of the petitioner. This Court finds that the learned Civil Judge has categorically observed that the decree in the civil suit bearing number 71/2010 was passed by the learned Trial Court on 10.05.2012 (Annex.1), while the execution application for the same had been preferred by the respondent-decree holder bearing number 03/2013, to which the petitioner filed an objection bearing number 08/2013. Learned Trial Court consolidated the execution application and the objection filed by the petitioner and dismissed the objection vide order dated 20.12.2019. Thereafter, the execution application bearing number 03/2013 was disposed of on the basis of the compromise between the petitioner and the respondent-decree holder dated 17.08.2022. Learned Trial Court consolidated the execution application and the objection filed by the petitioner and dismissed the objection vide order dated 20.12.2019. Thereafter, the execution application bearing number 03/2013 was disposed of on the basis of the compromise between the petitioner and the respondent-decree holder dated 17.08.2022. On the basis of the said compromise dated 17.08.2022, the petitioner was given a time period of 2 years starting from the date of compromise to 16.08.2024, to vacate the disputed premises, however the same was not complied with. Subsequently, on account of failure of the petitioner to comply with the conditions of the compromise dated 17.08.2022, the respondent-decree holder filed an application for execution on 27.08.2024 (Annex.6), of the judgment and decree dated 17.08.2022, passed in the light of the compromise arrived at between the parties, on the basis of which a possession warrant was issued on 02.09.2024 (Annex.7), the possession of the disputed premises was taken on 12.09.2024 (Annex.10), however, in the order dated 08.10.2024, due to typographical mistake, the date when the possession of disputed premises was taken on has been mentioned as 19.09.2024 instead of 12.09.2024. Therefore, in the light of the given circumstances, the learned Civil Judge has rightly observed that the application for execution dated 27.08.2024, was not presented after a delay of 12 years from the grant of decree dated 10.12.2015 (Annex.1), rather the application for execution dated 27.08.2024 (Annex.6) was filed by the respondent-decree holder for compliance of the order passed by the learned Trial Court dated 17.08.2022, which was passed in the light of the compromise arrived at between the parties and that, as per the terms and conditions of the compromise, the petitioner was supposed to hand over the possession of the disputed premises to the respondent-decree holder till 16.08.2024, which he failed to do and thus, the execution application filed by the respondent-decree holder is within the period of two years starting from the date of order passed by the learned Trial Court, on the basis of the compromise dated 17.08.2022. 7. This Court also finds that the learned Civil Judge has also observed that permission for the possession warrant was taken by Assistant Nazir from learned Additional District and Sessions Judge 1, Abu Road. 7. This Court also finds that the learned Civil Judge has also observed that permission for the possession warrant was taken by Assistant Nazir from learned Additional District and Sessions Judge 1, Abu Road. Similarly, learned Civil Judge has taken note of the fact that though the petitioner disputes his consent to the compromise dated 17.08.2022, however upon perusal of the order passed by the learned Trial Court dated 17.08.2022, it is seen that the petitioner was present in the Court and the same was also confirmed by his advocate. It was also observed by the learned Tribunal that in case the compromise dated 17.08.2022 was arrived at, without the knowledge of the petitioner, he should have taken appropriate steps. The learned Civil Judge also arrived at a conclusion that the petitioner had not clarified any such action taken by him before the learned Civil Judge thus, in the light of the given circumstances, this Court concurs with the findings of the learned Civil Judge that the petitioner has placed nothing on record to show that the possession of the disputed premises was taken illegally. 8. This Court also finds that the learned Tribunal has categorically observed, while taking into consideration the list of the goods found in the disputed premises along with the photographs, that it was the petitioner who had refused to take the goods and therefore, the goods were kept in the premises itself. Thus, the learned Civil Judge has rightly observed the possession of goods has been taken lawfully, and the petitioner was indeed free to get his goods, in accordance with the law, however, it was due to his inaction, the goods are kept in the disputed premises. 9. Therefore, in the considered opinion of this Court the order dated 08.10.2024 (Annex.14) has been rightly passed by learned Senior Civil Judge, Abu Road and, therefore, the same do not call for any interference by this Court in exercise of its writ jurisdiction under Article 226 and 227 of the Constitution of India. Learned Civil Judge has dealt with all the grounds raised by the petitioner, elaborately and in accordance with law. 10. The writ petition is, accordingly, dismissed. Stay Petition and other misc. application, if any pending, also stand dismissed.