This Article 227 petition challenged the inaction of the District Judge regarding a stay application in execution proceedings. The Court held that since the disputed property had been demolished, the decree was satisfied, and no interference was required. Petition dismissed.
The petition for interference under Article 227 is dismissed.
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Neutral Citation No. - 2023:AHC:135003
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 6131 of 2023
Petitioner :- Deependra Kushwaha Respondent :- Smt. Sunita Counsel for Petitioner :- Arvind Srivastava
Hon'ble Jayant Banerji,J.
Heard learned counsel for the petitioner.
This petition has been filed with the following prayers:
"i) To issue an order or direction setting-aside the order dated 20.02.2023, 03.03.2023, 28.03.2023, 29.03.2023, 31.03.2023, 03.04.2023 (Annexure No. 7 to this Petition passed by the Civil Judge (Jr. Div),Jhansi;
ii) to issue an order or direction directing the court below to decide the Stay Application dated 20.02.2023 (Annexure No. 06 to this Petition) filed by the applicant alongwith the Appeal No. 17 of 2023 (Deependra Kushwaha Vs. Smt. Sunita & others) pending before The District Judge, Jhansi arising out of the order dated 01.02.2023 passed by the Civil Judge (Jr. Div.), Jhansi in Misc. Case No. 37 of 2022 (Deependra Kushwaha Vs. Smt. Sunita & others);"
The contention of the learned counsel for the petitioner is that the suit of the plaintiff was decreed in the year 2009 and thereafter execution proceedings were filed in which the petitioner filed an application under Order 21 Rule 97 of C.P.C. The application of the petitioner being rejected, an appeal against the same has been filed. It is stated that in the appeal an application for stay has been filed which is not being considered by the appellate court.
It is the contention that the building in dispute has been demolished and fresh constructions are being made and there is likelihood of creation of third party rights and, therefore, the application for stay, pending before the appellate court requires consideration.
Admittedly, pursuant to the execution proceedings the property over which the petitioner claims to be in possession, as has been fairly stated by the learned counsel for the petitioner, has been demolished. Learned counsel has referred to the stay application dated 22.2.2023 appearing on page No.92 of the petition that is not being considered by the appellate court. The application seeks stay
of the execution proceedings in Execution case No.5 of 2010. Though the decree has not been enclosed, however, the operative part of the judgment, that is enclosed as Annexure No.2 to the petition, reflects that possession of the suit property was directed to be given to the plaintiff. When it is admitted case of the petitioner that the property in dispute has been demolished, the decree stands satisfied. As such, under the facts and circumstances of the case, no interference is required.
This petition is, accordingly, dismissed .
The Registrar (Compliance) is directed to send a copy of this order to the concerned Court within fifteen days.
Order Date :- 7.7.2023 K.K.Tiwari
(Jayant Banerji, J.)
Digitally signed by :- KRISHNA KANT TIWARI High Court of Judicature at Allahabad
1 issue framed by the court
Whether the High Court should interfere in the execution proceedings where the decree-declared property has been demolished and the decree stands satisfied.
Deependra Kushwaha
Smt. Sunita
Jayant Banerji
Krishna Kant Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
