Dismissed

Shamshul v. Smt. Maya Devi and 3 Others

Allahabad HC16 Apr 2019A227/2751/2019

Case brief

AI extract

What is this about?

This Article 227 petition challenged the rejection of an application under Order XXI Rule 97 C.P.C. regarding delivery of possession. The Court dismissed the petition, holding the petitioner's claim based on collusive possession was devoid of merits.

What did the court decide?

Petitioner's challenge to the rejection of the application under Order XXI Rule 97 C.P.C. was dismissed as the petition was devoid of merits.

Shamshul Vs Smt. Maya Devi and 3 Others — Execution and Attachment | Allahabad HC (2019)

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Court No. - 26

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Case :- MATTERS UNDER ARTICLE 227 No. - 2751 of 2019

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Petitioner :- Shamshul Respondent :- Smt. Maya Devi And 3 Others Counsel for Petitioner :- Rahul Sahai

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Hon'ble Dr. Yogendra Kumar Srivastava,J.

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Heard Sri Rahul Sahai, learned counsel for the petitioner.

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The present petition seeks to challenge the order dated 18.03.2019 passed by the Ist Additional District Judge, Badaun in SCC Revision No. 26 of 2016 and the order dated 09.05.2016 passed by the SCC Judge/Civil Judge (Senior Division) Badaun in Misc. Case No. 156 of 2012 whereby the application (Application No. 3-Ga) filed by the petitioner under Order XXI Rule 97 C.P.C. has been rejected.

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In terms of an application (Application No. 3-Ga) filed under Order XXI Rule 97 read with Section 151 C.P.C., registered as Misc. Case No. 156 of 2012, the petitioner had sought to assert his independent rights as a tenant over the shop in dispute, the possession of which was sought to be delivered to the respondent nos. 1 and 2 landlord-decree holders from the respondent no. 3 tenant-judgment debtor in Execution Case No.10 of 2012.

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Concurrent findings of fact have been recorded by the courts below to hold that the application had been filed by the petitioner primarily to deny the decree holder the fruits of the decree. It has also been recorded that the petitioner had not been able to demonstrate any independent legal right with regard to his possession over the premises in question. It has been specifically taken note of that the judgment-debtor, instead of handing over possession of the premises in question to the

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landlords, handed over possession of the same to an outsider Ram Gopal, and the petitioner illegally entered into the possession of the shop through a third party outsider who had no legal right in respect of the premises in question. On these findings, the courts below have held that the petitioner had entered into possession collusively through the judgement debtor and in view of the same, he had no independent legal right to resist the execution of the decree. The courts below have also recorded that no material document to show the factum of tenancy had been placed on record by the petitioner. There was no rent agreement or any rent receipt to prove his tenancy.

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The petitioner having been held to have entered into possession collusively through the judgment debtor and having no independent legal right or interest in the property in question, the courts below have come to the conclusion that he is not entitled to resist the delivery of possession of the property to the decree holder by filing an application under Order XXI Rule 97 C.P.C.

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Counsel for the petitioner has not been able to point out from the records that the petitioner had an independent legal right to demonstrate his valid possession and to resist the execution of the decree.

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No material error or illegality has been pointed out in the orders passed by the courts below.

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The petition is devoid of merits and is accordingly dismissed.

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Order Date :- 16.4.2019

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Pratima

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(Dr. Y.K.Srivastava,J.)

Shamshul v. Smt. Maya Devi and 3 Others

Case brief

What is this about?

What did the court decide?

Shamshul v. Smt. Maya Devi and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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