Partly allowed

J.K Sarkar v. Yatindra Nath Mishra

Allahabad HC2 May 2018A227/3069/2018

Case brief

AI extract

What is this about?

In an Article 227 writ petition, the Supreme Court directed the Additional Chief Judicial Magistrate to decide an execution application evicting a tenant within six months, holding that an interim order on a set-aside application could not delay the execution proceedings.

What did the court decide?

Direction to the Executing Court to decide the Execution Application (MPA No. 07 of 2017) within six months from the date of production of the certified copy of this order.

J.K Sarkar Vs Yatindra Nath Mishra — Execution and Attachment | Allahabad HC (2018)

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Court No. - 26

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Case :- MATTERS UNDER ARTICLE 227 No. - 3069 of 2018

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Petitioner :- J.K Sarkar Respondent :- Yatindra Nath Mishra Counsel for Petitioner :- Saurabh Basu

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Hon'ble Mrs. Sangeeta Chandra,J.

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(Oral).

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This petition has been filed praying for a direction to the learned Court of Additional Chief Judicial Magistrate, Court No. 6, Allahabad to decide the Execution Case titled as MPA No. 07 of 2017 (Jayant Kumar Sarcar Versus Yatindra Mishra) within a stipulated time period as provided by this Court.

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The counsel for petitioner submits that the petitioner-landlord has filed a Release Application under Section 21 of the U.P. Act No. 13 of 1972 for release of entire first floor of the house No. 132-A, Alopibagh, Allahabad under the tenancy of the respondent. He also states that Release Application registered as PA Case No. 3 of 2002 (Smt. Amita and another Versus Yatindra Nath Mishra) was allowed on 13.07.2009. The tenantrespondent filed a Rent Control Appeal on 03.08.2009 against the order dated 13.07.2009 registered as Rent Control Appeal No. 94 of 2009 (Yatindra Nath Mishra Vs. Amita Rani Sarcar) and during the pendency of the Appeal stay was granted. The Appeal was ultimately dismissed. A Civil Revision was filed, which too was dismissed by this Court on 31.08.2017.

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The tenant-respondent, however, filed petition under Article 227 numbered as Writ Petition No. 817 of 2017 against rejection of his Application under Order 9 Rule 13 C.P.C. for want of compliance with the proviso to Sub Section (1) of Section 17. This Court by its order dated 13.02.2017 directed that till the next date of listing the effect and operation of the ex-parte decree dated 20.12.2013 shall remain stayed provided the tenant deposits damages at the rate of Rs.1500/- per month w.e.f. 07.03.2017 and thereafter continues to deposit the same month to month by the 7th of each succeeding month, failing which the interim protection shall automatically stand vacated.

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Under the cover of the order dated 13.02.2017 passed by this Court in the petition filed by the tenant-respondent the execution proceedings are being delayed. This Court had passed a conditional interim order on 13.02.2017. The condition

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was not complied with and execution proceedings were being delayed, therefore, the petitioner filed a Contempt Application (Civil) No. 170 of 2018 (J.K. Sarcar Versus Yatindra Nath Mishra), which was dismissed by this Court on 12.01.2018 with the observation that since the interim order was itself conditional and clearly provided that in case of default in compliance with the directions, the interim protection shall automatically stand vacated, there was no necessity for keeping the contempt petition pending.

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It is the case of the petitioner-landlord that the Execution Application, however, has continued to be listed without any effective orders and only because of pendency of the petition No. 817 of 2017 no direction has been passed by the Executing Court.

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The learned counsel for the petitioner submits that the petition under Article 227 was filed by the tenant-respondent only because his Application under Order 9 Rule 13 for setting aside the exparte decree dated 20.12.2013 was not being entertained along with an Application seeking exemption from depositing the entire decretal amount. This petition under Article 227 related to deposit of entire decretal amount before the Application under Order 9 Rule 13 C.P.C. could be entertained. The pendency of this petition has nothing at all to do with the Execution Application relating to eviction of the tenant, yet the Executing Court is not proceeding with the matter as is required under law.

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Accordingly, this petition is disposed off with a direction to the Executing Court to proceed in accordance with law and decide the Execution Application. It is evident from the order dated 13.02.2017 that it was only a conditional order relating to the entertainment of the Application under Order 9 Rule 13. The Executing Court shall try and pass final orders on the Execution Application registered as MPA No. 07 of 2017 within a period of six months from the date of production of a certified copy of this order before it.

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Order Date :- 2.5.2018 LBY

J.K Sarkar v. Yatindra Nath Mishra

Case brief

What is this about?

What did the court decide?

J.K Sarkar v. Yatindra Nath Mishra

Case brief

What is this about?

What did the court decide?

What the court decided

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