Allowed

Dr. B.K.Gupta v. Judge Small Couse Court Agra and Another

Allahabad HC15 Sept 2023WRIA/36773/2011

Case brief

AI extract

What is this about?

This Court issued a writ of mandamus to the State of U.P. and police officials to deliver possession of suit property to the petitioner in execution of an ex parte eviction decree, noting that ordinary execution was rendered ineffective due to obstruction by police authorities occupying the property.

What did the court decide?

Mandamus issued to the State of Uttar Pradesh and police officials to deliver vacant possession of the suit property to the petitioner by 10th October, 2023, maintaining the property in good repair pe

Dr. B.K.Gupta Vs Judge Small Couse Court Agra and Another — Property and Title | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:179012

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Court No. - 33 Reserved

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A.F.R.

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Case :- WRIT - A No. - 36773 of 2011

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Petitioner :- Dr. B.K.Gupta Respondent :- Judge Small Cause Court, Agra and another Counsel for Petitioner :- Mr. Swapnil Kumar Counsel for Respondent :- C.S.C.

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Hon'ble J.J. Munir,J.

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1. Heard Mr. Swapnil Kumar, learned Counsel for the petitioner and Mr. Neeraj Tripathi, learned Additional Advocate General assisted by Sri A.K. Trivedi, learned Standing Counsel appearing on behalf of the State.

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2. This writ petition under Article 226 of the Constitution has engaged the attention of this Court regularly during the past twelve years. The transaction, out of which this writ petition has arisen, the cause of action involved and the relief claimed, are all very unusual and unconventional; but not without good reason.

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3. The petitioner, who has prayed for the issue of a writ of mandamus , directing the Judge, Small Cause Court to ensure handing over of actual physical possession of the suit property, subject matter of the decree dated 14.11.1991 passed by the said Judge in SCC Suit No.108 of 1989, has not chosen this very unusual course without a most astounding situation he is confronted with. He has further prayed that a mandamus be issued to the respondents, by which apparently he means respondent No.2, the State of Uttar Pradesh through the Collector, Agra, directing them to pay damages to the petitioner @ Rs.10,000/- per month, with effect from the date of the decree dated 14.11.1991 up to the date of delivery of actual

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possession. It may sound like an ill-advised relief to be asked by a decree-holder in a writ petition, but that too has some background to it, as the facts of the case here would show.

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4. The petitioner is the plaintiff of SCC Suit No.108 of 1989, instituted in the Court of the Judge, Small Causes, Agra on 14^th March, 1989. The suit aforesaid was instituted by the present petitioner's father, Mr. R.B.L. Gupta, Advocate. Pending proceedings at the stage of execution, the plaintiff-decreeholder, R.B.L. Gupta died and his son, the petitioner, Dr. B.K. Gupta was substituted. Thus, for all intents and purposes, now Dr. B.K. Gupta son of the late R.B.L. Gupta, the original plaintiff, shall be called 'the petitioner'.

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5. Reverting in time, when the suit was instituted, it was the petitioner's case that the State Government of Uttar Pradesh was a tenant of the petitioner in the property bearing Municipal No.6/336, situate at Khandari Road, Hari Parwat Ward, Agra, with details mentioned at the foot of the plaint and shown in red colour in the map annexed to the plaint. The State Government were his tenants, who are respondent No.2 here, at a monthly rent of Rs.15/- per month, the tenancy commencing on the 1^st day of every English calendar month. The aforesaid premises, let out by the petitioner to the State Government, shall hereinafter be called 'the suit property'. It comprised two pucca rooms with a door between them, oriented towards Khandari Road in the north and behind the said room, there was a gate and a tin shed, attached to it towards the south. Thereafter, there was an open land further to the south. The suit property, as already said, is detailed in the plaint map. The suit property is said to be bound on all sides by a boundary wall, approximately 10 feet high on the east and 12 feet in the south.

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6. It is the petitioner's case, pleaded in the plaint giving rise to the suit, that the State have not paid rent since 1^st March, 1988, despite repeated requests. It is the petitioner's case further pleaded in the plaint that the then S.H.O., Hari Parwat, one Albel Singh, Chowki In-charge Chowki Khandari, Omveer Singh Pundir and Constables Vansraj Singh and Nawab Singh, within knowledge of the Senior Superintendent of Police, Agra and conspiring amongst themselves, without the petitioner's consent or permission, completely damaged the rooms, gate, tin shed and boundary wall standing on the land comprising the suit property and misappropriated the materials.

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7. It is asserted that the State Government had full knowledge of the aforesaid act. The petitioner, upon receiving information that the suit property is being demolished, reached the spot along with Mr. Surendra Kumar Gupta, Advocate on 17.03.1988 at about 8:00 p.m. and found the Station House Officer, Hari Parwat, the Chowki In-charge, Khandari, besides some constables, present at the suit property along with 15-20 labourers, who were demolishing the existing building. The petitioner asked the policemen present not to cause further damage to the property. The men present there are said to have threatened the petitioner with death and detention in police custody. The petitioner along with Surendra Kumar Gupta, Advocate went to Police Station Hari Parwat to lodge an FIR, where he was mistreated and asked to go away. Mr. Surendra Kumar Gupta then sent a telegraphic report of the incident to the defendant.

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8. It is then pleaded that the defendant illegally, unauthorizedly and forcefully, without the petitioner’s consent, constructed one room and a verandah in front of it, on the open

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land towards the south of the original premises, let out to the State Government. There existed no construction at the spot, where it has been erected. The said act, according to the petitioner, constitutes, structural alteration that has led to diminishment in the utility and value of the suit property and further disfigured it.

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9. In face of these facts, the plaintiff served a notice upon the defendant, determining the tenancy of the State of Uttar Pradesh and requiring them to vacate the property, delivering its vacant possession, after removing the unauthorized construction put up, within 30 days of receipt of the notice. The defendant was also called upon to pay arrears of rent. The petitioner also claimed in damages a sum of Rs.50,000/- from the date of receipt of notice towards costs of the demolished constructions as per details averred in paragraph No.10 of the plaint. It was mentioned in the notice that it be treated also as one under Section 80 of the Code of Civil Procedure, 1908 (for short, 'the Code').

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10. It was also averred that the plaintiff would file a suit separately for damages, as the learned Judge, Small Cause Court may not have jurisdiction to grant that relief. The composite notice under Section 106 of the Transfer of Property Act, 1882 and Section 80 of the Code was duly served.

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11. The petitioner, therefore, instituted the suit for eviction, arrears of rent and mesne profits, including future mesne profits till delivery of possession as per particulars mentioned in relief clauses A, B and C to the plaint. The suit was apparently instituted on ground of actionable default and structural alteration leading to substantial damage, in consequence of which the suit property suffered a diminishment in its value and

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disfigurment. These grounds were pleaded to make out a case for eviction under Section 20 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (for short, 'the Act of 1972').

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12. The plaint as originally framed carried the following array of defendants:

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(1) U.P. State summons to be served upon the Collector, Agra

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(2) Senior Superintendent of Police, Agra,

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(3) Sri R.K. Singh Rathore, serving as Circle Officer, Hari Parwat, Agra,

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(4) Sri Albel Singh, serving as Station Officer, P.S. Hari Parwat, Agra,

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(5) Sri Omveer Singh Pundir, In-charge Police Outpost Khandari, Agra

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(6) Sri Vansraj Singh / both serving as Constables

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(7) Sri Nawab Singh / Police Outpost Khandari, P.S. Hari Parwat, Agra.

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13. Later on, it appears that the petitioner moved an application to delete defendant Nos.2 to 7 from the array, that is to say, the Police Authorities, who were in occupation of the suit property. The application was allowed by the Court vide an order dated 08.08.1991. The police functionaries, who were in occupation of the suit, were, therefore, asserted by the petitioner to be holding the suit property on behalf of the State of U.P. represented by the Collector as the petitioner's tenant.

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14. Summons of the suit was issued to the defendant, that is to say, State of U.P. through the Collector, Agra arrayed as respondent No.2 to the writ petition. The defendant-respondent No.2 was duly served and the Trial Court held service sufficient. The suit proceeded ex parte , with the petitioner filing his

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affidavit to prove the plaint case being paper No. 15- Ga . Along with the list of documents, a carbon copy of the notice, the registered postal receipt and the AD card in original were filed.

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15. The Trial Court held that the suit, being one for eviction from a building against a tenant, whether an officer of the Government or a private person, is maintainable before the Judge, Small Cause Court. He looked into the affidavit, the copy of the notice, the registered postal receipt and the AD card. On the basis of the evidence offered by the petitioner, the Trial Court decreed the suit for eviction, besides Rs.96/towards arrears of rent, Rs.75/- in mesne profits and Rs.200/as costs of the notice. The suit was decreed in the aforesaid terms ex parte . It was also decreed that the plaintiff would be entitled to recover pendente lite and future mesne profits at the rate of Rs.15/- per month, upon deposit of necessary court-fee in the execution department. This decree was passed on 14.11.1991.

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16. Based on the aforesaid decree, Execution Case No.20 of 1999 was instituted in the Court of the Judge, Small Cause on 06.12.1999. A writ of possession was issued by the Executing Court to the Amin ordering him to deliver possession of the suit property to the petitioner. The Amin , in order to enforce the writ, went over to the suit property, where he found, according to the petitioner, a police official, who was informed about the Court's decree and asked to vacate the suit property. The police officer present refused to vacate and handover possession 'unless a direction came from the D.I.G. of Police'. The Court Amin submitted his report on 20.12.2010 before the Executing Court, informing the Court that he had proceeded to the suit property to handover possession and informed the Police official there to

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vacate it, but the policeman said that he would not deliver possession unless the D.I.G. directed him to do so.

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17. According to the petitioner, the Executing Court took into consideration the report of the Amin dated 20.12.2010, and on 09.03.2011, again issued a writ of possession. The Court further directed the Amin to get the suit property vacated after contacting the competent authorities. The order dated 09.03.2011, that was passed by the Executing Court, reads:

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"ददिनांक- 09-03-2011 वादि पुकारा गया। डडिकदिार मय दवदान अडधववा हाजजर है। दवपकक की तरफ से कोई हाजजर नही है। पूवर मे दिखल परवाना जारक दकया गया था। अमकन की आख्या ददिनांदकत 20.12.2010 पत्रावलक पर उपलबध है। जजसके अनुसार अमकन ने नयायालय दारा प्गत भवन मे मौजूदि पुललस कमरचाररयो को नयायालय के आद ि े से अवगत कराते हुएर पुललस चौकी भवन को खालक करके कबजा व दिखल डडिकदिार को दिेने के ललएर कहा तो उनहोने कबजा - दिखल दिेने से इंकार कर ददिया दक हमारे पास डक0 आई0 जक0 का कोई आद ि े नही है तथा भवन खालक करने से इंकार कर ददिया। अतः पुनः परवाना दिखल जारक हो अमकन इस सम्नध मे सकम अडधकाररयो से समपकर कर दिखल की कायरवाहक समपन्न करे। आख्या ददिनांक 22.3.2011 को पेि हो।"

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ह0/ अ0 लघुवादि नयायाधकि, आगरा।"

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18. The Amin again went to the suit property to enforce the writ of possession on 15.03.2011 after informing the D.I.G. of Police and the Collector, Agra. However, the policeman present there refused to vacate the premises as he had not received any orders either from the D.I.G. or the Collector, Agra. The report was submitted again by the Amin before the Executing Court, informing the learned Judge of these facts. A copy of the said report is on record as Annexure No.4 to the writ petition. After the aforesaid report was submitted by the Amin , the Executing Court directed on 26.03.2011 that a letter be issued to the Collector, Agra to vacate the suit property. In pursuance of the Court's order, a letter dated 02.04.2011 was addressed

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by the Court to the Senior Superintendent of Police and D.I.G., Agra Range, Agra requesting the two officers that in execution of the decree dated 14.11.1991 passed in the SCC Suit, actual physical possession of the suit property, mentioning its details, be handed over to the petitioner within a week and a compliance report submitted in Court. Despite the aforesaid demi-official letter issued by the Court, the decree was not executed nor possession handed over to the petitioner by the State or the Police officials occupying it.

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19. It is the petitioner's case that the decree dated 14.11.1991 has become final and there is no legal impediment to its execution, but the Police are unlawfully occupying the suit property. It is also urged on behalf of the petitioner that in order to circumvent the Court's decree, the State and the Police Authorities have resisted execution of the decree unlawfully. It is pleaded that the practice has been deprecated by the Supreme Court in terms that the decree-holder should reap the fruits of the decree.

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20. There is an assertion in paragraph No.18 of the writ petition that the Executing Court is unable to execute the decree as the suit property is in possession of the Police. The petitioner has asserted that he is denied possession of the suit property and no rent is being paid to him since 1^st March, 1988, whereas respondent No.2 and the Police Authorities, who are occupying the suit property on the said respondent’s behalf, have taken the law into their hands, obstructing execution of the decree. It is urged that on account of the dishonest stand of respondent No.2, the petitioner has not been able to secure possession of the suit property despite a decree in his favour. The petitioner says that this a violation of his right under Articles

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21 and 300-A of the Constitution. It is claimed by the petitioner that due to continuing illegal possession of the respondent, he is suffering loss by being deprived of the enjoyment of his property. The area of the suit property is said to be quite large, and if let out, would fetch rent in the sum of Rs.10,000/- per month. The petitioner has, therefore, in the face of the Executing Court turning helpless to execute its own decree, taken resort to the extraordinary jurisdiction of this Court under Article 226 of the Constitution. In substance, the petitioner seeks a direction to the State, represented by the Collector, and the Police Authorities holding the suit property on behalf of the second respondent to vacate the same in compliance with the decree dated 14.11.1991 passed by the Judge, Small Cause Court, Agra, which that Court is unable to execute, owing to the brazen abuse of public office by the Police Authorities in occupation of the suit property on behalf of the State.

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21. As said earlier by this Court, the relief sought in this petition is very unusual and the circumstances necessitating it are equally so. When this petition came up before the Court the first time on 08.07.2011, the learned Counsel for the respondents was granted three weeks' time to file a counter affidavit. When the case came up before the Court the next time, it was 01.08.2011 and the following order was passed by my esteemed Brother Shashi Kant Gupta:

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“This writ petition has been filed for issuance of a direction in the nature of mandamus to the respondent no. 1 Judge, Small Cause Court, Agra to ensure the handing over the actual physical possession of the property in pursuance to eviction decree dated 14.11.1991 passed by Judge, Small Cause Court, Agra in S.C.C. Case No. 108 of 1989. It has been further prayed that the respondents be directed to pay damages at the rate of Rs.10,000/- per month w.e.f. the date of

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the decree i.e. 14.11.1991 up to the actual date of vacation of the premises in dispute.

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Learned counsel for the petitioner has submitted that father of the petitioner filed S.C.C. Case No. 108 of 1989 (R.B.L. Gupta Vs. U.P. State) in the Court of J.S.C.C. Agra for rent and eviction as rent was not paid since 01.03.1988 as well as without permission certain illegal construction was raised by the defendants. Police Chowki is being run in the premises in dispute. The aforesaid suit was decreed by Additional J.S.C.C. Agra vide Order dated 14.11.1991. The said order was not challenged by the respondent no. 2, as such, the Order dated 14.11.1991 attained finality. Subsequent thereto an Execution Case No. 20 of 1999 (R.B.L. Gupta Vs. U.P. State) was filed for executing the decree.

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It was further submitted by the learned counsel for the petitioner that a writ of possession was issued by the executing Court to the Amin for handing over the possession of the premises to the petitioner decree holder. The Amin in pursuance to the writ of possession went to the disputed premises for handing over the possession, where he met police officials and informed them about the order of the executing court and requested them to vacate the premises but they refused to vacate and give possession unless a direction comes from the D.I.G. Police.

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The court Amin has submitted its report dated 20.12.2010 before the executing Court informing hat when he went to hand over the possession of the disputed premises to the petitioner and informed the police officials to vacate the disputed premises (police chowki) they refused to vacate the disputed premises (police chowki).

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The Executing Court considering the report of the Amin, on 09.03.2011 again issued a writ of possession and further directed to Amin to get the premises vacated after contacting the appropriate authorities. For ready reference, the order dated 09.03.2011 passed by the Executing court is quoted below:-

"ददिनांक- 09.03.2011

कबजा व दिखल डडिकदिार को दिेने के ललएर कहा तो उनहोने कबजा - दिखल दिेने से इंकार कर ददिया दक हमारे पास डक0 आई0 जक0 का कोई आद ि े नही है तथा भवन खालक करने से इंकार कर ददिया। अतः पुनः परवाना दिखल जारक हो अमकन इस सम्नध मे सकम अडधकाररयो से समपकर कर दिखल की कायरवाहक समपन्न करे। आख्या ददिनांक 22.3.2011 को पेि हो।"

¶64

ह0/ अ0 लघुवादि नयायाधकि, आगरा।"

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Learned counsel for the petitioner has further submitted that the Amin again went to the disputed premises for handing over the possession to the petitioner on 25.03.2011 after giving information to the D.I.G. Police and Collector, Agra. However, again police officials refused to vacate the premises on the pretext that they have not received any orders either from the D.I.G. Or Collector, Agra. A report dated 25.03.2011 has again been submitted by the Amin before the executing Court informing about the aforesaid fact.

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It is further submitted that despite the best efforts, the petitioner has not been handed over the possession of the property in dispute and is unnecessarily being harassed, therefore an appropriate direction is required to be issued by this Court to the concerned authorities.

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From the bare perusal of the record, it appears that the decree of eviction dated 14.11.1991 has become final, as such, there is no legal impediment in execution of the decree in its true spirit but because the premises in dispute is occupied by the police for the purpose of Police Chowki, the petitioner is not able to get the possession of the premises.

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this Court by order dated 08.07.2011 had issued the notice to the respondents for filing counter affidavit, but till date neither counter affidavit has been filed nor the disputed premises has been vacated.

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In view of the above, let the matter be listed on 23rd August, 2011.

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On the said date i.e. 23.08.2011, the District Magistrate, Agra and D.I.G. (Agra) shall remain present in person before this Court to explain as to why the said premises No. 6/336 situated at Khadari Road, Hari Parwat Ward, Agra has not been

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vacated despite the decree passed by the Court below.

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The certified copy of this Order may be given to the learned Standing Counsel Sri R.K. Singh free of cost.

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Office is directed to inform about this Order to the District Magistrate, Agra and D.I.G. Agra forthwith.”

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22. On 06.09.2011, when the matter appeared again before his Lordship, the following order was made:

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“this Court by orders dated 1.8.2011 and 23.8.2011 had passed the following orders:

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1.8.2011

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This writ petition has been filed for issuance of a direction in the nature of mandamus to the respondent no. 1 Judge, Small Cause Court, Agra to ensure the handing over the actual physical possession of the property in pursuance to eviction decree dated 14.11.1991 passed by Judge, Small Cause Court, Agra in S.C.C. Case No. 108 of 1989. It has been further prayed that the respondents be directed to pay damages at the rate of Rs.10,000/- per month w.e.f. the date of the decree i.e. 14.11.1991 up to the actual date of vacation of the premises in dispute. Learned counsel for the petitioner has submitted that father of the petitioner filed S.C.C. Case No. 108 of 1989 (R.B.L.Gupta Vs. U.P. State) in the Court of J.S.C.C. Agra for rent and eviction as rent was not paid since 01.03.1988 as well as without permission certain illegal construction was raised by the defendants. Police Chowki is being run in the premises in dispute. The aforesaid suit was decreed by Additional J.S.C.C. Agra vide Order dated 14.11.1991. The said order was not challenged by the respondent no. 2, as such, the Order dated 14.11.1991 attained finality. Subsequent thereto an Execution Case No. 20 of 1999 (R.B.L. Gupta Vs. U.P. State) was filed for executing the decree.

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holder. The Amin in pursuance to the writ of possession went to the disputed premises for handing over the possession, where he met police officials and informed them about the order of the executing court and requested them to vacate the premises but they refused to vacate and give possession unless a direction comes from the D.I.G. Police.

"ददिनांक- 09.03.2011

वादि पुकारा गया। डडिकदिार मय दवदान अडधववा हाजजर है। दवपकक की तरफ से कोई हाजजर नही है। पूवर मे दिखल परवाना जारक दकया गया था। अमकन की आख्या ददिनांदकत 20.12.2010 पत्रावलक पर उपलबध है। जजसके अनुसार अमकन ने नयायालय दारा प्गत भवन मे मौजूदि पुललस कमरचाररयो को नयायालय के आद ि े से अवगत कराते हुएर पुललस चौकी भवन को खालक करके कबजा व दिखल डडिकदिार को दिेने के ललएर कहा तो उनहोने कबजा - दिखल दिेने से इंकार कर ददिया दक हमारे पास डक0 आई0 जक0 का कोई आद ि े नही है तथा भवन खालक करने से इंकार कर ददिया। अतः पुनः परवाना दिखल जारक हो अमकन इस सम्नध मे सकम अडधकाररयो से समपकर कर दिखल की कायरवाहक समपन्न करे। आख्या ददिनांक 22.3.2011 को पेि हो।"

¶86

ह0/ अ0 लघुवादि नयायाधकि,

आगरा।"

orders either from the D.I.G. Or Collector, Agra. A report dated 25.03.2011 has again been submitted by the Amin before the executing Court informing about the aforesaid fact.

In view of the above, let the matter be listed on 23rd August, 2011.

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The certified copy of this Order may be given to the learned Standing Counsel Sri R.K. Singh free of cost.

¶97

Office is directed to inform about this Order to the District Magistrate, Agra and D.I.G. Agra forthwith.”

¶98

23.8.2011

¶99

Exemption applications have been filed today on behalf of the District Magistrate, Agra and D.I.G. Agra, wherein it has been stated that on account of Janmashtami Festival on 22nd August, 2011, it is very difficult to leave the station because of the tense law

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and order situation on 22nd/23rd night as there is mass movement of pilgrims to the various temples and fairs between Agra and Mathura, the birth place of Lord Krishna. It was requested that the personal appearance of the aforesaid officials may be exempted for today by this Court.

¶102

Cause shown is sufficient. Personal appearance of the aforesaid officials is exempted for today. Exemption applications are allowed.

¶103

List the matter peremptorily on 6th September, 2011.

¶104

On the said date i.e. 6th September, 2011, the District Magistrate, Agra and D.I.G. Agra shall remain present in person before this Court to explain as to why the disputed Premises No. 6/336 situated at Khadari Road, Hari Parwat Ward, Agra (wherein the Police Chowki has been established) has not been vacated despite the decree passed by the Court below way back in November, 1991 and nearly 20 years have expired since then.

¶105

This order has been passed by this Court in the presence of the Learned Additional Government Advocate Sri Jafar Nayyar.

¶106

Office is directed to inform about this order to the District Magistrate, Agra and D.I.G. Agra forthwith."

¶107

Pursuant to the above order Mr. Asim Arun, Deputy Inspector General of Police, Agra and Mr. Ajay Chauhan, District Magistrate, Agra are present before the court and three supplementary affidavits, out of which, two on their behalf and one on behalf of Mr. Aseem Chaudhary, Circle Officer Hari Parvat, Agra have been filed which are taken on record. Apart from the said supplementary affidavit, an affidavit and one short counter affidavit have also been filed on behalf of the District Magistrate, Agra which forms part of the record.

¶108

As prayed by the learned counsel for the petitioner, three weeks' time is granted to file reply to the averments made in the aforementioned affidavits and supplementary counter affidavits.

¶109

List the matter for further hearing on 13.10.2011.

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¶111

The District Magistrate, Agra, who is present today, shall remain present in person before this Court on that date. However, until further orders of this Court, the personal appearance of the D.I.G., Agra , who is present today, shall remain exempted.”

¶112

23. On 13.10.2011, the matter again appeared before his Lordship, when the following order was passed:

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“this Court by order dated 6.9.2011 had passed the following order:

¶114

“this Court by orders dated 1.8.2011 and 23.8.2011 had passed the following orders:

1.8.2011

possession went to the disputed premises for handing over the possession, where he met police officials and informed them about the order of the executing court and requested them to vacate the premises but they refused to vacate and give possession unless a direction comes from the D.I.G. Police.

"ददिनांक- 09.03.2011

ह0/ अ0 लघुवादि नयायाधकि,

आगरा।"

Agra. A report dated 25.03.2011 has again been submitted by the Amin before the executing Court informing about the aforesaid fact.

In view of the above, let the matter be listed on 23rd August, 2011.

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The certified copy of this Order may be given to the learned Standing Counsel Sri R.K. Singh free of cost.

¶135

Office is directed to inform about this Order to the District Magistrate, Agra and D.I.G. Agra forthwith.”

23.8.2011

there is mass movement of pilgrims to the various temples and fairs between Agra and Mathura, the birth place of Lord Krishna. It was requested that the personal appearance of the aforesaid officials may be exempted for today by this Court.

¶140

Cause shown is sufficient. Personal appearance of the aforesaid officials is exempted for today. Exemption applications are allowed.

¶141

List the matter peremptorily on 6th September, 2011.

¶142

¶143

This order has been passed by this Court in the presence of the Learned Additional Government Advocate Sri Jafar Nayyar.

¶144

Office is directed to inform about this order to the District Magistrate, Agra and D.I.G. Agra forthwith."

¶145

¶146

As prayed by the learned counsel for the petitioner, three weeks' time is granted to file reply to the averments made in the aforementioned affidavits and supplementary counter affidavits.

¶147

List the matter for further hearing on 13.10.2011.

¶148

¶149

¶150

Today an exemption application supported by an affidavit sworn by Mr. Ajay Chauhan, District Magistrate, Agra has been filed wherein it has been stated that on 12. 10.2010 a fax message was received from the Governor House, Lucknow in respect of visit of Hon'ble Governor at Agra and since the presence of the deponent is immensely necessary during the visit of Hon'ble Governor on 13.10.2011 and 14.10.2011, he is unable to appear before this Court today.

¶151

Cause shown is sufficient. Exemption application is allowed. Personal appearance of the said Officer is exempted today.

¶152

Today a second supplementary counter affidavit has been filed on behalf of the respondent no. 2 wherein it has been stated that a restoration application under Order IX Rule 13 C.P.C. for setting aside the decree as well as an objection under Section 47 C. P. C. have been filed in the execution proceedings and 18. 10.2011 is fixed in the matter before the court below.

¶153

Considering the facts and circumstances of the case, the court below is directed to dispose of the aforementioned objections filed under Section 47 C.P.C. in the execution proceedings by the respondent no. 2, if possible, on the date fixed i.e . 18.10.2011. Learned counsel for both the parties have stated that they will not seek any adjournment before the court below on that date. It is made clear that this Court has not expressed any opinion on the merits of the case and it will be independent exercise of the court concerned to pass appropriate order in accordance with law.

¶154

List the matter on 3.11.2011. On that date the District Magistrate, Agra, shall remain present in person before this Court.”

¶155

24. On 03.11.2011, the Court passed the following order, adjourning the matter to 22.11.2011:

¶156

“Today third supplementary counter affidavit has been filed by the respondent no.2 which is taken on record.

¶157

¶158

Learned counsel for the petitioner has submitted that the matter has been fixed tomorrow before the Trial Court for hearing of the execution case.

¶159

Considering the facts and circumstances of the case, court below is directed to decide the objection of the respondent no.2 filed against the execution of the decree within 10 days positively from the date of receipt of the certified copy of this order.

¶160

Learned counsel for the parties undertakes not to seek any adjournment in the matter.

¶161

In the meantime learned counsel for the petitioner may also file supplementary rejoinder affidavit to the third supplementary counter affidavit filed today.

¶162

List the matter on 22.11.2011.

¶163

On the said date, respondent no.2, District Magistrate, Agra shall remain present before this Court.”

¶164

25. It appears that on 22.11.2011, the District Magistrate again did not appear and made an exemption application, which was allowed, adjourning the matter to 30.11.2011. On 01.12.2011, the learned Additional Advocate General appeared before the Court and stated that the objections under Section 47 of the Code filed by the State Government in the execution case had been dismissed, whereagainst a revision has been filed, which is pending. The petition was, accordingly, adjourned to 23.01.2012. The order dated 01.12.2011 reads:

¶165

“It is stated by the learned Additional Advocate General that after the dismissal of the objections filed by the State Government in the Execution Case, a Revision has been filed which is pending.

¶166

List this petition on 23rd January, 2012.”

¶167

26. The next time the Court heard the matter was as late as on 28.07.2014, when the following order was passed:

¶168

“Supplementary rejoinder affidavit filed is taken on record.

¶169

¶170

On the request of learned Standing Counsel, list peremptorily on Tuesday 5th August, 2014 by which time he may seek instructions from the parties why the premises in dispute has not been vacated despite rejection of objection under Section 47 C.P.C.”

¶171

27. Again, on 05.08.2014, the following order was made:

¶172

“Petitioner is a owner and landlord of the premises in dispute which is in occupation of the police authorities as tenant. Despite the decree of eviction against the tenant which has attained finality, the petitioner is unable to obtain its possession probably for the reason that the police authorities are in possession of the same.

¶173

In execution, respondent No.2 had filed objections under Section 47 C.P.C. and the same have been rejected vide order dated 25.11.2011. It is said that against the said order SCC revision No.103/11 has been filed and is pending before the District Judge/ Additional District Judge, Agra.

¶174

The District Judge is directed to ensure that the aforesaid revision is decided within a period of six weeks from the submission of the certified copy of this order before him and that no adjournment to either of the parties are allowed unless it becomes inevitable that too by imposing cost not less than Rs.1000/- per adjournment.

¶175

The decision of the revision shall be submitted by the District Judge before this Court immediately.

¶176

Learned Standing Counsel in the meantime may file an affidavit clearly stating if there is any stay order still operating in the said revision or not and in case there is no stay to file an affidavit of the Collector as to why the possession was raised and not given to the petitioner so far.

¶177

List this petition on 15th September, 2014.”

¶178

28. On 15.09.2014, this Court passed the following order:

¶179

“Sri Manoj Goswami, learned standing counsel again seeks time on the ground that pursuant to the direction of this Court, the revision has been decided on 9.9.2014 which has to be challenged by means of a writ petition.

¶180

The decree of eviction was passed as far as back as on 14.11.1991. It has attained finality.

¶181

¶182

Objections of the tenants under Section 47 have been rejected and so is the revision. Thus there appears to be no justification for the tenant to continue in possession.

¶183

The Collector was required to file affidavit as to why since 1991, the possession could not be delivered as there was no stay against the decree of eviction from any higher court. The Collector has filed his affidavit stating that against rejection of the objections under Section 47 when the revision was filed an undertaking was given that the eviction procedure would not take place till the disposal of the stay application. He has cleverly avoided to point out as to whether the said undertaking was for a limited period or was extended and as to what happened to the stay application in the revision.

¶184

The affidavit filed by the Collector is only an eye wash. Previously also this Court was compelled to summon the Collector and the D.I.G. concerned vide order dated 1.1.2011. In spite of this, the officers are sitting mum and unable to explain why the decree of eviction passed in 1991 is not being allowed to be implemented . It appears that simply for the reason that the police authorities are in possession of the disputed premises, no action is being taken to put the landlord in possession of it making a mockery of the the decree of eviction.

¶185

In view of the above facts and circumstances, the court reluctantly adjourns the matter in the interest of justice to let the respondents exhaust all their remedies subject to payment of Rs. 5000/- (five thousand)as cost be paid to the other side.

¶186

Accordingly, list this writ petition on 23.9.2014.”

¶187

29. The matter was again heard on 24.09.2014 and the Court passed the following order:

¶188

“A counter affidavit has been filed by respondent No.2 today to which a rejoinder affidavit has also been filed.

¶189

The counter affidavit filed is totally confusing and at several places refers to supplementary counter affidavits filed earlier. It is difficult to comprehend the defence set up by the respondent No.2 without referring to the earlier supplementary counter affidavits.

¶190

¶191

A party to a litigation cannot be permitted to file affidavits after affidavits in response to a petition. The entire defence with all supportive documents has to be filed together.

¶192

In Ishwar Singh and others Vs. Surinder Bajaj and others 2014(7) ADJ 544 the practice of filing successive counter affidavits in opposition to a petition by the same party has been deprecated.

¶193

In view of above, all the counter affidavits and supplementary counter affidavits filed by respondent No.2 and the affidavits filed in rejoinder affidavit to the same are discarded. The respondent No.2 is directed to file one comprehensive counter affidavit giving full facts in a chronological order with all necessary documents within a period of two weeks and no more.

¶194

List on 10.10.2014.”

¶195

30. On 10.10.2014, the case was adjourned in order to comply with the orders of the Court dated 24.09.2014, rejecting the piecemeal counter affidavits with the direction to file a comprehensive one instead. On 17.10.2014, the office report shows that a consolidated counter affidavit was filed and placed on record bearing No. 335916-2014 dated 10.10.2014.

¶196

31. On 13.11.2019, the petition was adjourned on the petitioner's request. On 04.12.2019, the Court made the following order:

¶197

“Shri Swapnil Kumar, learned counsel for the petitioner when asked as to how this writ petition is maintainable for the alleged failure of the executing court to execute its own judgment and decree, he prays for time to bring on record the documents showing that applications which were filed by the instrumentalities of the State seeking quashment of such exparte judgment and decree have all been rejected and yet the executing court is not in a position to execute the order.

¶198

This case is pending since 2011 and the basic issue of locus of the petitioner to file this writ petition has not been adverted to and is not being answered.

¶199

¶200

In the interest of justice, 7 days time is granted to the learned counsel for the petitioner, subject to payment of cost of Rs. 5000/- to be deposited in the High Court Legal Services Authority which amount is to be used for the needy litigant.

¶201

List this case on 18.12.2019.

¶202

It is made clear that depositing the cost will be a pre condition for hearing of the matter on 18.12.2019, otherwise the petition will be dismissed without any further indulgence.”

¶203

32. In compliance with the order dated 04.12.2019, the petitioner deposited costs of Rs.5000/- with the office of the High Court Legal Services Committee, Allahabad on 17.12.2019.

¶204

33. On 29.07.2021, this writ petition came up before me for the first time, when I made the following orders:

¶205

“The Deputy Inspector General of Police, Agra Range Agra, and the Senior Superintendent of Police, Agra, who had earlier been summoned by this Court in person for the simple reason that they have refused to comply with a decree of eviction passed by the Judge, Small Cause Courts, Agra that has attained finality are now reported to be continuing with their disobedience. The writ of possession issued by the executing Court has been physically resisted by the judgmentdebtor respondents misusing the brute force of the armed police available at their command. There is an elaborate record of the orders passed by this Court endeavouring to cause the eviction decree passed by the Judge, Small Cause Courts to be executed against the respondents, who are occupying the demised premises illegally for housing their police Chowki.

¶206

The Deputy Inspector General of Police, Agra Range Agra, and the Senior Superintendent of Police, Agra, shall file their personal affidavits by tomorrow at 02:00 pm showing cause why the writ of possession issued by the executing Court has been resisted and the demised premises not vacated. In the event cause is not shown on personal affidavits by the Deputy Inspector General of Police, Agra Range Agra, and the Senior Superintendent of Police, Agra, both

¶207

¶208

the Officers shall appear in person tomorrow at 02:00 pm.

¶209

List this matter tomorrow at 02:00 pm in the additional cause list.

¶210

Let this order be communicated to the Deputy Inspector General of Police, Agra Range Agra, and the Senior Superintendent of Police, Agra, by the Registrar (Compliance) forthwith.

¶211

Let a copy of this order be also furnished forthwith to Mr. Vinod Kant, Additional Advocate General, U.P.”

¶212

34. On 30.07.2021, the following orders were passed:

¶213

“Muniraj G., the Senior Superintendent of Police, Agra has appeared in person because he has not filed his personal affidavit according to our order dated 29.07.2021. The direction in our last mentioned order requiring the Deputy Inspector General of Police, Agra Range Agra also, to file a personal affidavit and in default to appear personally requires to be recalled because this Court is informed by Mr. Manish Goyal, the learned Additional Advocate General, on instructions received, that there is no post of a Deputy Inspector General of Police at Agra and there are no Range Headquarters, there.

¶214

Mr. Goyal seeks time until Wednesday to come up with the respondent's stand specifically on the point whether there is any order of stay or order of setting aside the decree of eviction passed against the judgment-debtor respondents.

¶215

List this matter in the additional cause list on 04.08.2021 at 02:00 pm.

¶216

By that time the stand of the respondents shall be disclosed on a personal affidavit sworn by Muniraj G., the Senior Superintendent of Police, Agra, failing which he will appear in person again. However, in case the required personal affidavit is filed, the Officer need not appear.”

¶217

35. On 04.08.2021, I admitted the petition to hearing in terms of the following orders:

¶218

“In compliance with the order dated 30.07.2021, the Senior Superintendent of Police, Agra has filed his personal affidavit dated 04.08.2021, raising allegations about the title of the

¶219

¶220

landlord. The affidavit is in the nature of a counter affidavit. It is taken on record.

¶221

A supplementary affidavit has been filed on behalf of the petitioner, which is also taken on record.

¶222

Admit.

¶223

Heard Mr. Swapnil Kumar, learned counsel for the petitioner and Mr. J.N. Maurya, learned Chief Standing Counsel along with Mr. L.K. Tripathi, learned Additional Chief Standing Counsel for the respondent-State at length.

¶224

Put up tomorrow in the additional cause list for further hearing at 02:00 p.m.”

¶225

36. The hearing continued on 05.08.2021, 09.08.2021 and then on 10.08.2021, when orders were reserved.

¶226

37. In view of the defence taken in the counter affidavit, where the title of the petitioner as also the relationship of landlord and tenant were denied, besides respondent No.2, the State of U.P. pleading fraud against the petitioner, this Court wanted to know if there was any order passed by a Court of competent jurisdiction staying the execution of the decree. Therefore, the matter was posted for further hearing on 26.04.2022, 28.04.2022, 05.05.2022 and 12.05.2022. The matter again came up on 19.05.2022, when I passed the following order:

¶227

“This case has a history of disobedience to the ex parte decree passed by the Judge, Small Cause Court, Agra in SCC Suit No.108 of 1989. The decree was passed albeit ex parte on 14.11.1999. A very detailed order was passed on 13.10.2011. The substance of the dispute and the issue that has led to the unusual step of the petitioners approaching this Court under Article 226 of the Constitution is that the ex parte decree passed by the Judge, Small Cause Court, Agra in SCC Suit No.108 of 1989 has remained unexecuted for the past thirty years or more. The reason for the due process of the Executing Court failing is that the judgment-debtor is none other than the Police Establishment at Agra, and they have obstructed

¶228

¶229

the Court Amin and the writ of possession from being executed by employment of the Police Force at their command.

¶230

When the ordinary processes of execution have been bogged down to an extent that a decree that is still in force and not set aside or stayed by any Court of competent jurisdiction, is no more than a piece of paper, the petitioner has approached this Court. this Court had passed a very detailed order way back on 13.10.2011, after summoning some Senior Police Officers, including the then D.I.G. Agra, Range Agra and the District Magistrate of Agra, besides the Circle Officer to show-cause in the matter and file their personal affidavits. It appears that thereafter an application under Order IX Rule 13 CPC was made. An objection under Section 47 of the Code was also filed. The motion under Order IX Rule 13 CPC and the objection under Section 47 have both failed right upto this Court and those orders have attained finality. There does not appear to be any quarrel over the said fact. this Court also summoned on 29.01.2021 the D.I.G. Agra Range Agra. Instead, Muni Raj G, the then Senior Superintendent of Police, Agra appeared in person and informed the Court that there is no D.I.G. stationed at Agra. He was asked to disclose on a personal affidavit the fact whether there is any order of stay or one setting aside the decree of eviction passed against the judgment-debtorrespondent. He disclosed that it has neither been stayed nor set aside. During the long course of proceedings of this petition, the respondents have been repeatedly asked to inform the Court whether the decree of eviction has been stayed or set aside by any Court of competent jurisdiction and the information is in the negative. Yet, the decree continues to be disobeyed.

¶231

Mr. Neeraj Tripathi, learned Additional Advocate General has appeared in Court today along with Mr. L.K. Tripathi, learned Additional Chief Standing Counsel. He informs the Court that the execution has been adjourned and posted to 22.07.2022. Mr. Tripathi, has further informed the Court that the third party objection under Order XXI Rule 97 CPC on behalf of the Senior Superintendent of Police, Agra are part of the said execution proceedings, and consequently, these also stand adjourned to that day. In the circumstances, the District Judge, Agra shall make a report to this Court on or before 24.05.2022, whether the decree passed in S.C.C. Suit No.108 of 1989 dated 14.11.1999 has been stayed or set aside by any Court of competent

¶232

¶233

jurisdiction in any proceedings; until date of his report, he will cause all proceedings including the suit and the third party objection, as well as the execution to be suitably rescheduled, advanced and posted before the Court/Court's concerned for orders on this side of the summer vacations with sufficient time to the Court to pass appropriate orders.

¶234

List this petition in the additional cause list on 24.05.2022 together with the report of the learned District Judge, Agra.

¶235

Let this order be communicated to the learned District Judge, Agra by the Registrar (Compliance) within 24 hours.”

¶236

38. After some adjournment, the matter was heard again and judgment reserved on 08.07.2022. There was still some clarification required about the status of proceedings under Order XXI Rule 97 of the Code and the independent suit filed by respondent No.2, the State, asserting their claim to the suit property. The matter was, therefore, heard further on 04.01.2023, 09.01.2023, 04.02.2023, 21.02.2023, 01.03.2023 and 16.03.2023, when judgment was again reserved.

¶237

39. Across all this period of time, it was the endeavour of this Court to find out if respondent No.2, who say that the petitioner is nobody and not their landlord, but one who has secured an ex parte decree against them by playing fraud upon the Court, have succeeded before a Court of competent jurisdiction in proceedings brought to establish their right and nullify the decree. Till the judgment was reserved on 16.03.2023, spreading across numerous hearings and the judgment being reserved on more than one occasion, respondent No.2 could not show even an interim order granted by any Court of competent jurisdiction staying the execution of the ex parte decree dated 14.11.1991. To the contrary, as already remarked, in the orders of this Court dated 19.05.2022 and the earlier ones too, the application by respondent No.2 under Order IX

¶238

¶239

Rule 13 of the Code, seeking to set aside the ex parte decree as also the objection under Section 47 of the Code, have been noticed as rejected. The challenge to those orders have failed up to this Court, with the said orders attaining finality.

¶240

40. When the matter was heard on 19.05.2022, Muniraj G., Senior Superintendent of Police, Agra, who appeared in person, was asked to disclose on a personal affidavit if there is any order of stay of eviction passed in favour of respondent No.2 or an order setting aside the eviction decree. He disclosed that the ex parte decree has neither been stayed nor set aside. When the matter was heard again in the month of March, 2023, the position remained unchanged. The two challenges laid to the decree, under Order IX Rule 13 of the Code and Section 47 of the Code, respectively, have both failed. What is pending still is an objection under Order XXI Rule 97 of the Code, and, the other, an independent suit filed by the State of Uttar Pradesh through the Collector, Agra against the petitioner, arrayed as defendant No.5, besides six other defendants, including the Nagar Nigam, Agra represented by the Nagar Ayukt.

¶241

41. The said suit is a title suit and seeks reliefs of declaration, cancellation, prohibitory and mandatory injunction. The reliefs claimed and the case in the suit instituted by the State of U.P. would be elucidated in further detail a little later in this judgment.

¶242

42. The objection under Order XXI Rule 97 of the Code has been filed by the Senior Superintendent of Police, rather queerly represented through one Ajay Kaushal, S.H.O., Hari Parwat. The aforesaid objections are numbered as Misc. Case No.16 of 2021 in pending Execution Case No.20 of 1999. The objections under Order XXI Rule 97 of the Code have

¶243

¶244

apparently not been decided so far nor any interim order granted.

¶245

43. This Court also notices that there is another miscellaneous case registered at the instance of respondent No.2, the State of U.P. through Collector, Agra being an application under Order XXI Rule 29 of the Code. The aforesaid provision relates to the entitlement of a judgment-debtor against a decree-holder, where a suit is pending between the decreeholder and the judgment-debtor to seek stay of execution of the decree, which the Court may grant, subject to such terms as to security or otherwise as it thinks fit until decision of the suit. Though a copy of the application giving rise to Misc. Case No. 213 of 2022 has not been brought to this Court's notice, going by the nature of power and the scope of an application under Rule 29 of Order XXI of the Code, this Court can only assume that the said application has been made in pending Suit No.1040 of 2011, instituted by respondent No.2 against the petitioner and the six other defendants there. In the said proceedings also, it has not been brought to this Court's notice that any stay order interdicting execution of the decree has been passed so far.

¶246

44. Here, note is to be taken of the case pleaded by respondent No.2 in the counter affidavit bearing No. 3359162014 dated 10.10.2014, filed in compliance with the order dated 24.09.2014. In the said counter affidavit, the State, respondent No.2, have endeavoured to show that indeed the petitioner is not the owner of the suit property nor the State, the petitioner's tenant. There is a reference to the judgment of an old suit bearing No. 289 of 1941, instituted by the Government of United Provinces against one Rajjak Ali, for ejectment and

¶247

¶248

arrears of rent, which was decreed. It is said that the land subject matter of dispute is nazul and not freehold.

¶249

45. It is the State's case that the petitioner's father, Mr. R.B.L. Gupta, Advocate, had also filed O.S. No. 279 of 1988 in the Court of the Munsif, Agra for a permanent injunction to restrain the State and some police officials from damaging and demolishing the suit property and also restraining them from raising a new construction. The suit was decreed ex parte on 07.08.1991 by the Court of the Munsif, Agra. The allegation is that summons of the suit were never served upon the State or any of the police officials.

¶250

46. It is the case of the State that the only document produced by the petitioner to establish his title is a sale deed and some rent receipts, where it is clearly mentioned that the land is nazul . The vendor, Chhotey Lal, who sold the land to Mr. R.B.L. Gupta, the plaintiff's father, did not have a right to transfer the same. The rent receipts in the name of U.P. State Police Department, annexed on behalf of respondent No.2, are said to be forged. There is an averment in paragraph No.11 of the counter affidavit, where it is said, “ the inquiry was set up by the D.I.G. Police Agra related from verification of the rent receipts and as per inquiry report the rent receipts are forged. For kind perusal of this Hon'ble Court, the photocopy of the Inquiry report is being filed herewith and is marked as Annexure No.C.A.6 to this affidavit. ”

¶251

47. It is next averred in paragraph No.12 that as per paragraph No.139 of the Uttar Pradesh Police Office Rules, the matter relating to rent has been explained and the paragraph reveals the proper criteria of deposit of rent. In paragraph No.13 of the counter affidavit, it is averred that the State of U.P. has

¶252

¶253

not taken the property on rent and there is no question of damaging the building. It is also urged that the SCC Suit has been brought on vague allegations without any material on record. There is a reference to another suit filed by the petitioner's father initially as Defective Suit No.42 of 1989, and, later on, numbered as Original Suit No.821 of 1992, for damages. The said suit too was decreed on 26.02.1996 by the Court of the Additional Civil Judge (Sr. Div.), Agra.

¶254

48. In paragraph No.23 of this counter affidavit, much has been blamed on the fact that the petitioner's brother, Mr. Surendra Kumar Gupta was a District Government Counsel (Civil) from the year 1998 to 2011, who is said to have manipulated the process of Court and brought an execution eight years after the ex parte decree was passed. It is also mentioned that the title suit brought by the State, being Suit No.1040 of 2011, State of U.P. vs. Tejpal and others for declaration etc. is still pending and execution cannot proceed till the said suit is decided.

¶255

49. Notice here must be taken of the contents of the personal affidavit filed by the then Senior Superintendent of Police, Muniraj G., where he has come up with the particulars of the case why the State deny the petitioner's title and the State's relationship with the petitioner as a tenant. This has been done mostly with reference to the allegations in O.S. No.1040 of 2011 that the State have instituted before the Civil Judge (Sr. Div.), Agra to declare the ex parte decree dated 14.11.1991 passed in SCC Suit No.108 of 1989 null and void, as also the ex parte decree dated 07.08.1991 passed in O.S. No.279 of 1988 and the ex parte decree dated 26.10.1996 passed in O.S. No.821 of 1992. The basis pleaded is that the State is the owner of nazul

¶256

¶257

land under the management of the Collector, bearing Khasra No. 1165, admeasuring 22 bigha 2 biswa , situate at Khandari, Tehsil and District Agra. According to the State, respondent No.2, the said property is recorded as ' Milkiyat Hakumat Sube Jaat (1) Nazul under the management of the Collector in the last settlement record i.e. khewat of the year 1331 fasli .

¶258

50. In due course of time, Khandari Road was constructed through the property, of which some area was encroached and residential houses constructed by encroachers. It is for the said reason that the suit property came to be recorded as abadi , road, houses etc. in the revenue record. It is pleaded that over an area of 165.44 square meters, the Police Chowki 'Police Outpost, Khandari, Agra', that is to say, the suit property has existed since before the year 1940 and continues to be there till date. This Police Chowki or Outpost was constructed during the British Rule, which remains in possession and occupation of the Police Department.

¶259

51. There are averments to the effect that the father of defendant Nos.1 to 4 to O.S. No.1040 of 2011, to wit, the late Chhotey Lal was an employee of the Nazul Department. He was a Peon. He encroached a sizeable portion of the suit property, claiming to be a lease holder, though no lease was ever executed in his favour. He got a building plan sanctioned by the Municipal Authorities, Agra in collusion with them. The plan was submitted with the signature of Chhotey Lal, Peon Nazul Department, Agra. Chhotey Lal and his wife Raj Devi had taken a loan of Rs.500/- from one Indrakanta wife of Mr. R.B.L. Gupta and executed a registered mortgage deed dated 04.10.1948 in Indrakanta's favour.

¶260

¶261

52. It is on the basis of the aforesaid fake building plan and the mortgage deed executed that defendant No.1 Tej Pal, his brother Panna Lal (the fourth defendant Hira Lal's father) (defendants to O.S. No.1040 of 2011) and Raj Devi wife of Chhotey Lal executed a sale deed dated 31.07.1958 in favour of Smt. Indrakanta, the petitioner's mother, describing the suit property, numbered as 3346/ 2910. It is stated that till the assessment years 1954-59 and 1959-64, there is no property recorded as one bearing No.6/336, that is to say, the suit property. It is asserted that the mother and the father of the petitioner, Smt. Indrakanta and Mr. R.B.L. Gupta were not the lawful owners of the suit property as they never purchased it from the rightful owner. It is also asserted that no lease deed has ever been executed in favour of the executants of the sale deed dated 31.07.1958 nor any lease deed executed relating to the suit property in favour of Smt. Indrakanta or Mr. R.B.L. Gupta.

¶262

53. It is averred in paragraph No.7 of the personal affidavit that the Police Chowki, Khandari was never in the ownership of the petitioner nor his predecessors-in-interest. It is also averred in paragraph No.8 that the petitioner's father, the late R.B.L. Gupta, who instituted SCC Suit, giving rise to the ex parte eviction decree, subject matter of this writ petition, “ was the practicing Advocate at the Civil Court Agra and thereafter his son Sri Surendra Kumar Gupta the defendant no.6 in O.S. No.1040 of 2011, who is also the D.H. No.1/2 in execution case no.20 of 1999, was appointed as DGC (Civil) from 02.12.1998 to 28.04.2011 and as such both the father of the petitioner being as practicing Advocate at Civil Court Agra and the brother, Sri Surendra Kumar Gupta being as practicing lawyer and DGC got managed the exparte decrees in his favour and

¶263

¶264

against the state in the suits as stated hereinbefore and as such such from 02.12.1998 to 28.04.2011, during continuation as DGC (Civil) by Surendra Kumar Gupta being as D.H. No.1/2, the state has got defeated in several civil proceedings filed for and against the state. ”

¶265

54. It is then said on behalf of the State that in Execution Case No.20 of 1999, the Police Department have filed objections under Order XXI Rule 97 read with Rule 101 of the Code, wherein they have made an application for grant of an ad interim stay of execution. The dates fixed in the said case are mentioned, but there is nothing said about an interim stay being granted. It is nevertheless said that the case is being adjourned on account of dilatory tactics in the disposal of the stay matter by the petitioner.

¶266

55. There is then a very clear statement in paragraph No.12 of the personal affidavit under reference, where it is averred:

¶267

“12. That however, it is respectfully submitted that till the date neither the exparte decree dated 14.11.1991 has been set-aside nor it has been stayed by any order passed by the superior court or any other court, except an application for granting the stay order against the exparte decree dated 14.11.1991 is pending before the court as stated above, for its disposal on 05.08.2021.”

¶268

56. A supplementary counter affidavit has also been filed on behalf of the second respondent, sworn by one Rajeev Sirohi, an Assistant Commissioner of Police, posted at Agra. This supplementary counter affidavit has been filed in compliance with this Court's order dated 9^th January, 2023. In paragraph Nos.8 and 9 of this supplementary counter affidavit, it is averred:

¶269

¶270

“8. That in reply to the contents of paragraph no. 4 of the affidavit, it is submitted that on 13.07.2022 the plaintiff has filed an application under Order 22 Rule 4(4) Cr.P.C. in the court of 1st A.C.J. (S.D.), Agra in O.S. No. 1040 of 2011 (State of U.P. vs. Tejpal and others). A true copy of application dated 13.07.2022 is being filed herewith and marked as Annexure No. SCA-1 to this supplementary counter affidavit.

¶271

That in reply to the contents of paragraph no. 5 of the affidavit, it is submitted that in Misc. Case No. 16 of 2021 the counsel for the petitioner, B.K. Gupta has requested repeatedly for grant of time. A true copy of order-sheet in Misc. Case No. 16 of 2021 (S.S.P. vs. R.B.L. Gupta) is being filed herewith and marked as Annexure No. SCA-2 to this affidavit.”

¶272

57. A perusal of the order-sheet does show that the petitioner has sought adjournment in proceedings of Misc. Case No.16 of 2021, that is to say, the application made under Order XXI Rule 97 of the Code on behalf of the S.S.P., Agra. The last order, of course, shows that both parties have sought adjournment. It must be observed that all these adjournments were sought because the present writ petition was engaging the attention of this Court.

¶273

58. This Court has given an anxious consideration to the very vexed state of litigation that this writ petition has brought before us for relief of a very extraordinary kind. This Court too has not shirked from entertaining the petition or passing orders to remedy the wrong alleged by the petitioner from time to time.

¶274

59. There are a few things which must be noticed and these do not meet our approval. The foremost is the fact that the State, represented either by the Collector or the actual occupants of the suit property, to wit, the Police at Agra, have been most nonchalant about the process of Court leading to the SCC Suit in this case being decreed ex parte . What is most exceptionable is the fact that when the writ of possession was

¶275

¶276

served upon the Police Chowki concerned, the police personnel present, instead of vacating the same, or immediately contacting through higher officials their Counsel, to take steps to get the ex parte decree set aside, told the Amin that they would not vacate the premises unless they have orders from the D.I.G. This fact is recorded in the order dated 09.03.2011 passed by the Judge, Small Cause Court in the execution case, of which due note has been taken in the order of this Court dated 01.08.2011.

¶277

60. If not earlier, as soon as the Amin arrived at the Police Chowki , it was time for the State represented by the Collector, and, in any case, the Police, who are in actual physical occupation of the suit property, to have moved the Court and taken steps to get the order set aside. Instead, the police personnel had the audacity to tell the Amin that they would vacate the suit property only if the D.I.G. ordered them to do. This Court makes it bold to say that the D.I.G. is not a Judge and the entire State in the pending litigation is no more than a litigant. This Court is inclined to think, in view of the subsequent conduct of the respondents, that the lower police personnel present at the Chowki told the Amin in the terms recorded in the order dated 09.03.2011 passed by the learned Judge, Small Cause Court, not without instructions from the higher officials in the establishment.

¶278

61. The words were spoken, not without inspiration, if not express permission by the D.I.G. or whoever was the superior officer at the Station. It was kind of the learned Judge, Small Cause Court, at that stage, not to have put the police personnel concerned, including the D.I.G., then posted at the Station, to a show cause notice, indicating why a reference for criminal

¶279

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contempt be not made. The learned Judge did not do that, though he could have very conveniently made a contempt reference after the police personnel posted at the Chowki obstructed the process of Court, which cannot be tolerated in any event. These execution proceedings lingered on after the said order was passed and neither the Police nor the State of U.P. represented by the Collector, Agra, took any steps to get the order set aside. It is the unpleasant duty of this Court to call a spade a spade.

¶281

62. The State and the police officials at Agra have exhibited an attitude of extreme arrogance, besides nonchalance and negligence in the matter of defending proceedings before the Judge, Small Cause Court. Perhaps, they have considered themselves to be too powerful to bother about the process of Court. The execution, when it landed at the premises where it had to be executed, was turned away by the police officials present, telling the Amin that they would act only if the D.I.G. directs them to comply with the decree. The execution of a decree of the Court can never be permitted to depend upon the whims of a party, be it private or official. The D.I.G. of Police or the Collector or the State as defendants or judgment-debtors before the Court, are no more than litigants. There are three successive reports by the Amin dated 20.12.2010, 25.03.2011 and 27.11.2019, copies of two of which, that is to say, reports dated 20.12.2010 and 25.03.2011, both submitted by Devaki Nandan, Amin , Civil Court, Agra, are on record at Pages Nos.33 and 35 of the paper-book (P.B. of the writ petition). These reports have been taken note of by the learned Judge, Small Cause Court.

¶282

¶283

63. What the learned Judge, Small Cause Court has done thereafter, is also not appreciable. He has written a demi-official letter to the S.S.P./ D.I.G. of Police, Agra Range, Agra, requesting that the decree dated 14.11.1991, regarding the suit property, be carried out. It is not the way of the Court to write letters, official or demi-official, to litigants before it, whatever be their station or rank; nor is it the way of the Court to request a litigant to comply. The Court is supposed to pass decrees, orders and issue processes for their execution, if litigants are in breach. It is not for the Court to go about requesting litigants merely because they happen to be officers of the State.

¶284

64. That all these reports by the Amin , entrusted with execution of the writ of possession, are true and the behaviour of the policeman at the Police Chowki was one with the instructions of their superior officers, is well proven by the contents of the counter affidavit dated 10.10.2014 filed on behalf of the State, already referred to in much detail. Of particular relevance in this connection are the averments towards the close of paragraph No.23 of the said affidavit, where it is said, “ the Amin report which has been manipulated by the petitioner is not sustainable in the eye of law as the property which belongs to the Police authorities the Amin must first approach the S.S.P. concerned and after direction of the S.S.P. the C.O. of the concerning Police Station takes action and previously the judgment was taken by this Hon'ble Court after concealing the material facts which has required for the proper adjudication of the case. ”

¶285

65. This Court places on record our extreme displeasure about the fact that the second respondent, the State or the police officials, who are in occupation of the suit property, have

¶286

¶287

had temerity to say that it was the duty of the Amin , carrying out the Court's process, to first approach the S.S.P. and after a direction of the S.S.P. and the C.O. of the concerned police station, take action to execute. The Amin is absolutely under no obligation to take any orders from the S.S.P. In fact, if the Amin had enough force of any kind available at his disposal, he would be within his rights to dispossess the judgment-debtor by force. After all, a decree for eviction, if not obeyed, is to be carried out by force. A decree is to be carried out against the judgment-debtor by the Amin and not the Police. If the judgment-debtor resists, it is the duty of the Amin to forcibly carry out the decree and police aid in such matters is only granted to maintain law and order; not to execute the decree by force. That enforcement by physical force is to be done by the Amin . Here, since the judgment-debtors, who are the Police themselves or the State, whom they represent, unlawfully employed physical force available at their command to obstruct the lawful execution of a decree passed by the Court, the decree could not be executed.

¶288

66. In the normal course, this Court would have taken cognizance of these facts prima facie to initiate proceedings for criminal contempt or directed the registration of a crime for obstructing the execution of a decree or a public servant in the discharge of his duties etc. under the Penal Code, but bearing in mind other factors, of which notice shall be taken hereinafter, this Court desists from doing so. Nevertheless, the I.G./ D.I.G., Agra Range, Agra and the S.S.P., Agra (now the Commissioner of Police, Agra) are cautioned in the matter, not personally, but by virtue of the office they hold, to strictly avoid repetition of such an act by themselves or their subordinates.

¶289

¶290

67. This Court must also remark that the State and the police officials, represented by the Senior Superintendent of Police, Agra, have wholesomely blamed the petitioner's brother Surendra Kumar Gupta for misusing his position as a District Government Counsel (Civil), Agra and also his father for like misuse of position as a senior member of the Bar at the District Court, Agra. Without judging issues involved in this case, this Court must say that it has become a fashion to blame members of the Bar by members of the society, to which State officials are no exception, when it comes to litigation involving lawyers. After all, a lawyer is also a citizen and has every right to seek legal redress in a Court of law. He cannot be stigmatized for every 'win' in Court to a presumed undue influence that he can exercise or might have exercised as a member of the Bar. An allegation, such as this also has the tendency to undermine the authority of the Court as an impartial arbiter.

¶291

68. Here, there are wholesome pleadings that say that the State and the Police were kept in the dark and ex parte decrees passed against them. Not only in the present case, this Court is constrained to observe that in two other suits as well, ex parte decrees have been passed. It is difficult to believe that the State, with all its machinery, would never have come to know about the institution of proceedings and the progress of suits in Courts against them. One could have thought that there might be some truth about the background of a manipulated service, but the conduct of respondent No.2, in particular, the Police, does not show that they have at all been concerned about the litigation instituted against them by the petitioner.

¶292

69. After the process of execution reached the Police Chowki in the hands of the Amin , no action was taken in the matter. The

¶293

¶294

letter of request to comply with the decree, which the Court has addressed to the Collector, Agra on 02.04.2011, ought to have certainly moved the respondents, including the Police in the matter, but they did not take any steps to get the ex parte decree set aside. It was only after this Court summoned the District Magistrate, Agra and the D.I.G., Agra Range, Agra have vide order dated 01.08.2011 that the respondents showed some movement. It was after this Court had passed order dated 01.08.2011, as aforesaid, and the subsequent order dated 23.08.2011, summoning these officials to Court, that the State filed objections under Section 47 of the Code on 15.09.2011 for the first time. Before 15.09.2011, the State represented by the Collector and the Police, who are sitting in the suit property, were not at all bothered about the ex parte decree for eviction dated 14.11.1991 passed against them.

¶295

70. The objections under Section 47 of the Code were rejected by the Executing Court on 25.11.2011. The State then moved the learned District Judge under Section 25 of the Provincial Small Cause Courts Act, 1887 in revision. Revision No.103 of 2011, preferred by the State, was dismissed by the Revisional Court vide judgment and order dated 09.09.2014.

¶296

71. Aggrieved by the said order, the State of U.P. filed a petition, being Matters under Article 227 No. 3222 of 2016, State of U.P. v. Sri R.B.L. Gupta and two others, before this Court, which was dismissed vide judgment and order dated 12.07.2016. Speaking for this Court, while dismissing the petition brought by the State of Uttar Pradesh, Hon'ble Pankaj Mithal, J. (as His Lordship then was of the High Court) repelled all those contentions that the respondents have now raised

¶297

¶298

before this Court, relating to the petitioner's title and their status as tenants in the suit property, observing:

¶299

“The respondents moved an application for the execution of the above decree. Accordingly, Execution Case No.20 of 1999 was registered. In the said execution case petitioner filed objections under Section 47 C.P.C. and the same have been rejected vide order dated 25.11.2011. The revision preferred against it has been dismissed on 09.09.2014.

¶300

The above two orders passed by the Executing Court rejecting the objections of the petitioner have been impugned by means of this petition under Article 227 of the Constitution of India.

¶301

The above orders have been passed way-back on 25.11.2011 and 09.09.2014. This petition has been filed on 05.05.2016 after about two years. The petition, therefore, suffers from delay and latches. The petitioner has tried to explain the delay in filing the petition by stating that it had filed Original Suits No.103 of 2011 and 1040 of 2011 and was waiting for the decision of the above suits.

¶302

One of the aforesaid suit No.1040 of 2011 is still pending and has not been decided. The other suit has been decided on 19.01.2016.

¶303

In this view of the matter, the explanation that the petitioner was waiting for the decision of the above suits is not acceptable.

¶304

On merits the argument of learned Standing Counsel is that the decree put in execution is without jurisdiction and a nullity for the reason that the property is a Nazul property and the Small Causes Court had no jurisdiction to hear and decide the suit. The Executing Court has not considered the above objection.

¶305

The Executing Court as well as Revisional Court have both observed that one of the objections of the petitioner under Order 47 C.P.C. was that the decree passed by the Small Causes Court on 14.11.1991 is without jurisdiction but has repelled the said argument by noting that the suit was for the eviction of a tenant by the landlord after determination of tenancy and as such it was cognizable by the Small Causes Court and therefore, the decree is not without jurisdiction.

¶306

¶307

The courts below further records that the respondents have filed two other suits namely civil suit No.279 of 1988 and 831 of 1992 against the petitioner, one for decree of permanent injunction restraining the petitioner from demolishing the construction situate over the land in dispute and the other for damages.

¶308

Both the above suits have been decreed and in respect of one of them an application under Order 9 Rule 13 C.P.C. was filed by the petitioner which was also rejected. In both the suits, the respondents have claimed themselves to be the owners and landlords of the property as was claimed by them in the suit giving rise to the present executing proceedings.

¶309

Thus, the consistent case of the respondents had been that they are the owners and landlords of the property in dispute and that the petitioner tenant thereof. The suit was essentially based upon the relationship of landlord and tenant between the parties and the decree passed therein is not without jurisdiction.

¶310

The petitioner in paragraph 27 of the petition has stated that it has filed original suit No.1040 of 2011, State of U.P. Vs. Tej Pal and others before the Civil Judge, (Sr. Division) Agra, for the cancellation of the sale deed dated 31.07.1958 (by which the property was purchased by the respondents/their predecessor in interest); for declaring the ex-parte decree dated 07.08.1991 passed in original suit No.279 of 1988, R.B.L. Gupta Vs. State of U.P. and others, ex parte decree dated 14.11.1991 passed in S.C.C. Suit No.108 of 1989, R.B.L.Gupta Vs. State of U.P., the ex parte decree dated 26.02.1996 passed in original suit No.881 of 1992 as illegal null and void; to restrain the respondents from interfering in its possession use and enjoyment of the suit property; to restrain the respondents from executing of the ex parte dated 14.11.1991 passed in S.C.C. Suit No.108 of 1989; and to declare the petitioner to be the owner in possession of the aforesaid property.

¶311

The reliefs claimed by the petitioner in the above suit clearly demonstrates that the relief claimed by the petitioner by filing objections in the execution proceedings had already been claimed by it by means of the aforesaid suit.

¶312

In view of the institution of the above suit and its pendency the petitioner can get the desired

¶313

¶314

relief therein irrespective of the objection taken to the said effect in the execution proceedings.

¶315

The aforesaid decree which has been put in execution is final as on date as the application of the petitioner filed under Order 9 Rule 13 C.P.C. for setting aside the same stand rejected.

¶316

The argument of the learned Standing Counsel that the decree is without jurisdiction ex facie has no force for the reason that the suit was for eviction of a lessee on determination of lease and was squarely within the jurisdiction of the Small Causes Court as per Section 15 of the Provincial Small Cause Courts Act, 1887.

¶317

The said suit was dependent upon the relationship of landlord and tenant between the parties and the question of title or the nature of the land were completely foreign to the cause adjudicated therein.

¶318

The submission that there was no relationship of landlord and tenant between the parties and therefore also the decree was without jurisdiction is without substance.

¶319

The Small Causes Court has decreed the suit in view of the relationship of landlord and tenant between the parties. The said view taken by the Small Causes Court may not be correct but that would not render the decree to be without jurisdiction.”

¶320

(emphasis by Court)

¶321

72. As a matter of abundant caution, it is required to be noticed that the ex parte decree, in regard to which the current execution has been levied, was also sought to be set aside by moving the Trial Court under Order IX Rule 13 of the Code on 01.09.2011 vide Misc. Case No. 103 of 2011. This application under Order IX Rule 13 of the Code was dismissed vide order dated 19.01.2016. What is noteworthy is that this application was moved on 01.09.2011, after this Court had passed orders dated 01.08.2011 and 23.08.2011, summoning the District Magistrate and the D.I.G. in person. Apparently, for good reasons assigned, the application under Order IX Rule 13 of the

¶322

¶323

Code was rejected, as already said, against which the State of U.P. carried a revision being Revision No. 6 of 2016 before the learned District Judge, Agra. The aforesaid revision, came up before the learned Additional District/ Special Judge (E.C. Act) for hearing on 17.05.2017 and was dismissed.

¶324

73. The Executing Court, that is to say, the Additional Judge, Small Cause Court, Agra vide order dated 26.04.2013 allowed the execution application and issued a writ of possession to the City Amin . Against the order of the Trial Judge, allowing the execution application and issuing the writ of possession, the State of Uttar Pradesh through the Collector, Agra preferred an SCC Revision before the learned District Judge, Agra, where it was numbered as SCC Revision No. 101 of 2013. This revision, upon assignment, came up for hearing on 26.10.2018 before the 10^th Additional District Judge, Agra, who dismissed the revision and affirmed the order of the Trial Court, directing the issue of a writ of possession.

¶325

74. After dismissal of SCC Revision No. 101 of 2013, a writ of possession was again issued to the Amin by the Judge, Small Cause Court, Agra in Execution Case No. 20 of 1999. The Amin made his report dated 27.11.2019, reporting his inability to execute the decree, because the policemen present in the suit property said that they will not vacate unless ordered by their higher officials. The aforesaid report is annexed as Annexure No.5 to the supplementary affidavit dated 17^th December, 2019 filed by the petitioner. The report of the Amin dated 27.11.2019 reads:

"अमकन आखया्

श्रकमान जक,

मा0 नयायालय के आद ि ेानुसार डडिकदिार अडधववा महोदिय को दनयत तारकख 27.11.2019 की पूवर सूचना दिेने के ्ादि ्गजर दिखल ददिलाने जायजादि नम्रक 6/336 ्ाकै ससथत खनदिारक थाना- हरकपवरत तहसकल व जजला आगरा मौके पर पहुँचा। मौके पर डडिकदिार उपससथत दमले। मैने उनको अपना पररचय ददिया तथा नयायालय के आद ि े से अवगत कराते हुएर अपने आने का आिय ्ताया तथा दिखल-तल् जायजादि की दनिानदिेहक करने को कहा, तो उनहोने पुललस चौकी खंदिारक के रप मे दिखल तल् जायजादि की दनिानदिेहक की जजसकी पुद् मैने दिखल तल् जायजादि की हदिऊ द परवाना हाजा से दमलायक जो सहक पायक गयक। ततपपात मैने चौकी पभारक खनदिारक को माननकय नयायालय के आद ि े से अवगत कराया तथा दिखल तल् जायजादि को खालक करने को कहा साथ हक साथ संलग पत्र की मूल पडत मय दिखल आद ि े की छाया पडत उनको दिक जो उनहोने पार की, परनतु अपने हसताकर करने से मना कर ददिया साथ हक यह भक कहा दक यह जायजादि हम ज् तक खालक नही करेगे ज् तक दक हमारे उच अडधकारक हमे आदिेशित नही करेगे। इस कारण दिखल की कायरवाहक समपन्न नही हो सके।

¶330

अतः परवाना द्ना तामकल वासते अदगम आद ि े श्रकमान जक की सेवा मे सादिर पेदषित है। ददिनांकः- 27.11.2019 ह0 अपदठत जजतेन्द कुमार ससेषसेना अमकन जसदवल कोरिर, आगरा।"

¶331

75. This Court must remark that this was a repeat of the same misdemeanour, which the Police had committed on 20.12.2010, when a writ of possession was issued by the Executing Court, leading to an identical report by Devki Nandan, Amin (Civil Court), Agra, that finds mention in the order of the learned Judge, Small Cause Court, Agra dated 09.03.2011, referred to earlier in this judgment. On that occasion, the Police had obstructed the execution of the Court's decree, saying that they would not vacate the suit property because they had no orders from the D.I.G.

¶332

76. It is profitable repetition that shows that the matters came a full circle, when more than nine years later, on 27.11.2019, the Amin , holding a similar writ of possession, made an identical report, saying that the Police have refused to obey the Court's decree on the pretext that they would obey it only if

¶333

¶334

ordered by their higher officials. Between these obstructed writs lie the entire proceedings of this writ petition, which was instituted on 05.07.2011, faced with the helplessness of the Judge, Small Cause Court in executing the decree, manifest in his order dated 09.03.2011, quoted in the earlier part of this judgment.

¶335

77. It is evident from the conduct of the respondents that they are bent upon obstructing the decree, utilizing the brute force of the State at their command to flout it. Their conduct also shows that they have moved the Court only to postpone execution at all relevant points of time. The application under Order XXI Rule 97 of the Code was filed by the S.S.P., Agra on 04.03.2021. This application was made as a third party objection, quite late in the day after the State of U.P. through the Collector, Agra, who had been defending the execution through objections under Section 47 of the Code and the application under Order IX Rule 13 of the Code, lost the applications and revisions, including remedies before this Court under Article 227 of the Constitution.

¶336

78. As we have noticed, a suit at the instance of the State of U.P., seeking to nullify the petitioner's title to the suit property and denying the second respondent's character as a tenant, being O.S. No. 1040 of 2011, is pending since that year. One of the reliefs sought in the said suit is cancellation of the sale deed in favour of the petitioner relating to the suit property dated 31.07.1958. A declaration has also been sought that the State of U.P. is the owner of the suit property and the petitioner, including his transferors, had no right, title or interest therein, nor were they the State's landlord. The ex parte decree, of which the present execution is the subject matter, was also

¶337

¶338

sought to be declared fraudulent and passed without jurisdiction.

¶339

79. Very startling facts were brought to this Court's notice, questioning the petitioner's title to the suit property, of which we have taken due note earlier in this judgment. It was also brought to our notice that according to the State's case, the vendor of the petitioner's father did not have a right to transfer the suit property to him, because it is all nazul land. The rent receipts have been claimed by the D.I.G. in paragraph No. 11 of the counter affidavit dated 10.10.2014 to be forged, because the D.I.G. says that he has got an inquiry done about it.

¶340

80. The least this Court can say is that at this stage of the proceeding, where in the execution of the eviction decree, the respondents have lost before all fora, their only hope to succeed is in the suit or the objections under Order XXI Rule 97 of the Code. Both these proceedings are title proceedings. As remarked earlier also, in none of these proceedings, the Courts, where these are pending, have granted any interim protection from eviction to respondent No.2. This Court cannot, in the least, go into all these disputed questions relating to the validity of the sale deed dated 31.07.1958, or the validity of the rent receipts.

¶341

81. It must be remarked that the assertions on the credit of the D.I.G. that he had got an inquiry done and found the rent receipts forged, do not carry any more weight than the pleadings or the case of a litigant. The D.I.G. here is not acting as a police official investigating a case, but occupies the position of a member of the house of judgment-debtors. His inquiry has, therefore, to be regarded as self-serving and of no worth. Unfortunately, for the respondents, no Court has so far

¶342

¶343

accepted their case of fraud practiced by the petitioner on the State of U.P. or the Police.

¶344

82. In fact, we think that we cannot go behind the remarks of this Court in the judgment and order dated 12.07.2016 passed in Matters under Article 227 No. 3222 of 2016, where for the purpose of execution of the eviction decree, the entire case set up by the respondents, calling in question the petitioner's title, has been rejected by this Court. All that this Court can provide to protect the interest of the State at this juncture is that the suit property should be preserved, maintained in good repair, saved from alienation and dissipation, pending the decision of the State of U.P.'s suit and the S.S.P.'s objection under Order XXI Rule 97 of the Code. This ought to be done on the clear understanding that should the State of U.P. succeed, or for that matter the S.S.P. as a functionary of the State, in establishing their right to the suit property at any stage, the petitioner shall hold the property well preserved, without alienating it to a third party, so that it may be delivered back to respondent No.2.

¶345

83. The invocation of this Court's writ jurisdiction by the petitioner, who is the decree-holder in SCC Suit No. 108 of 1989, praying that a mandamus be issued to the Judge, Small Cause Court to ensure handing over actual physical possession of the suit property in execution of the decree, may be a misdirection of the writ. The resort to this Court's writ jurisdiction for the execution of a decree, execution being a far more stable and dependable process to give effect to the relief that the Court has granted, is a very unusual thing for the petitioner to do, but across the period of twelve years, this petition has been entertained and dealt with by this Court, mindful of the fact that the State of U.P. represented by the Collector, Agra and the

¶346

¶347

Police at Agra, under the stewardship of the Senior S.P., have frustrated with impunity, all processes of the Executing Court.

¶348

84. In theory, this Court could always have sent back the petitioner with advice about his alternative remedies, but it has not been done in these twelve years that this writ petition has engaged the attention of different Benches of this Court. The reason is that the action of the State Authorities, in particular, the Police, who hold the suit property on behalf of the State of U.P., is, to say the least, most unseemly. A State Authority, after losing a litigation, may be on account of its own negligence, or the other side's resourcefulness, ought to gracefully bow out of the contest and seek remedies that the law permits. But, till it succeeds in one or the other remedy, it cannot disobey a decree or order by resort to its official machinery, overreaching the judicial process.

¶349

85. The petitioner here has found himself staring at a situation more than once, where he has established a right in his favour against the State and the Police to recover possession and also succeeded in his remedy before the Executing Court, but the remedy has been repeatedly rendered ineffectual by the Police telling the Court Amin that it is not the Court's writ which matters, but the D.I.G.'s permission. The D.I.G. here is a litigant and it is preposterous to think that a litigant, who is behaving in this fashion, would grant permission to his subordinates to vacate the suit property. The process of the Executing Court has been reduced to a mockery by the Police as the judgment-debtor or the party claiming under the judgment-debtor, the State of U.P., if one were to peruse the order dated 09.03.2011 passed by the Executing Court, after the Amin submitted his report dated 20.12.2020. The same

¶350

¶351

situation came about more than nine years later, when the State of U.P., failing in all its remedies before all Courts, including this Court, took the same stand, with the Court Amin being told on 27.11.2019 by the policemen posted at the suit property, that they would not vacate till their higher officials permit them. The writ of possession had to be returned unexecuted to the Executing Court.

¶352

86. In this Court's opinion, therefore, the relief sought by the petitioner has to be slightly moulded. It is one of those rare cases where, in the face of the process of execution being completely immobilized and rendered ineffectual by respondent No.2, in particular, the Police Authorities at Agra, misusing their official power, that this Court has to step in and issue a mandamus to the State of U.P. represented by the Collector to the effect that whoever be found in possession of the suit property on behalf of the State of U.P. represented by the Collector, Agra, including the Police, must deliver possession of the suit property to the petitioner in terms of the decree and in the manner and within schedule ordered by this Court, without any let and hindrance. Of course, the rights of the State and the Police, who are said to occupy on their behalf, would be safeguarded in the manner already indicated hereinbefore.

¶353

87. Now, the question is that can this Court issue a writ of mandamus to execute a decree passed on the regular side of the Civil Court, or for that matter the Small Cause Court. Normally and invariably, it ought not to be done. Execution is a self-sufficient and effective process to implement a decree and a writ of mandamus invariably to execute it ought not issue. If in a situation like the present one, the judgment-debtor had not been the State and the actual occupants an armed force of the

¶354

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State like the Police, the Executing Court could have easily directed the grant of police aid. We too could think why that course of action has not been adopted by the Executing Court. But, the hard reality is that the Executing Court, after the second occasion of its writ of possession being skirted by the policemen at the suit property, which has been returned unexecuted by the Amin through his report dated 27.11.2019, has again addressed a memo dated 09.12.2019 to the Senior S.P., Agra with a copy to the Collector, Agra, the judgmentdebtor here, asking the actual occupants, the S.S.P., Agra, to vacate the suit property in execution of the decree, which the learned Judge in the Executing Court has described as ancient. The learned Judge has mentioned the fact that the police personnel have refused to comply with the writ of possession, saying that they would vacate only if the higher officials of the Police order them to do so, resulting in the decree remaining unexecuted. Nothing has happened till date after 09.12.2019 and this letter by the Judge, Small Cause Court addressed to the S.S.P., Agra.

¶356

88. This Court has said earlier also in this judgment that a Court ought not write letters to litigants, whoever they are. It neither serves any purpose nor does it augur well for the system of justice. The writing of a letter of this kind after the return of a writ of possession is no process of the Court issued in aid of execution. It is an expression of utter helplessness by the learned Judge in the Executing Court to give effect to his decree.

¶357

89. It is in the face of this impossibility and helplessness that the petitioner has turned to this Court, praying for the issue of a writ of mandamus . But, the mandamus that he seeks is directed

¶358

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to the wrong addressee, to wit, the Judge. We think that the mandamus ought to issue to the State of U.P. through the Collector, Agra and anyone holding the suit property on their behalf, including the Police represented by the S.S.P., Agra or the I.G. Police/ D.I.G., Agra Range, Agra, or for the present, the Commissioner of Police, Agra, whosoever it may be.

¶360

90. A little earlier in the judgment, this Court had posed a question unto itself, if a writ of mandamus can be issued to execute a decree of the Civil Court. We think that in a rare situation of this kind to abate injustice, it must be. Dwelling upon the scope of the writ of mandamus , the Supreme Court in

¶361

Secretary, Cannanore District Muslim Educational Association, Karimbam v. State of Kerala and others, (2010) 6 SCC 373 held:

¶362

“ 29. While dismissing the writ petition the Hon'ble High Court with respect, had taken a rather restricted view of the writ of mandamus. The writ of mandamus was originally a common law remedy, based on Royal Authority. In England, the writ is widely used in public law to prevent failure of justice in a wide variety of cases. In England this writ was and still remains a prerogative writ. In America it is a writ of right. ( Law of Mandamus by S.S. Merrill, Chicago, T.H. Flood and Company, 1892, Para 62, p. 71.)

¶363

30. About this writ, SA de Smith in Judicial Review of Administrative Action , 2nd Edn., pp. 378 and 379 said that this writ was devised to prevent disorder from a failure of justice and defect of police and was used to compel the performance of a specific duty. About this writ in 1762 Lord Mansfield observed that “within the past century it had been liberally interposed for the benefit of the subject and advancement of justice”.

¶364

31. The exact observations of Lord Mansfield about this writ have been quoted in Wade's Administrative Law , 10th Edn. and those observations are still relevant in understanding the scope of mandamus. Those observations are quoted below:

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“It was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one…. The value of the matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied. Writs of mandamus have been granted, to admit lecturers, clerks, sextons, and scavengers & c., to restore an alderman to precedency, an attorney to practice in an inferior court, & c.” (H.W.R. Wade & C.F. Forsyth: Administrative Law , 10th Edn., pp. 522-23.)

¶367

32. De Smith in Judicial Review , 6th Edn. has also acknowledged the contribution of Lord Mansfield which led to the development of law on writ of mandamus. The speech of Lord Mansfield in R. v. Blooer [(1760) 2 Burr 1043 : 97 ER 697] runs as under:

¶368

“a prerogative writ flowing from the King himself, sitting in his court, superintending the police and preserving the peace of this country”. (See de Smith's Judicial Review , 6th Edn., Sweet and Maxwell p. 795, paras 15-36.)

¶369

33. Almost a century ago, Darling, J. quoted the observations in R. v. Denbighshire (Justices of) [(1803) 4 East 142 : 102 ER 784] , in R. v. Revising Barrister for the Borough of Hanley [(1912) 3 KB 518] which explains the wide sweep of mandamus. The relevant observations are: ( Revising Barrister case [(1912) 3 KB 518] , KB p. 529)

¶370

“… Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable.”

¶371

34. At KB p. 531 of the report, Channell, J. said about mandamus: ( Revising Barrister case [(1912) 3 KB 518] )

¶372

“… It is a most useful jurisdiction which enables this Court to set right mistakes.”

¶373

35. In Dwarka Nath v. ITO [AIR 1966 SC 81] a three-Judge Bench of this Court commenting on the High Court's jurisdiction under Article 226 opined that this article is deliberately couched

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in comprehensive language so that it confers wide power on the High Court to “reach injustice wherever it is found”. Delivering the judgment Justice Subba Rao (as His Lordship then was) held that the Constitution designedly used such wide language in describing the nature of the power. The learned Judge further held that the High Court can issue writs in the nature of prerogative writs as understood in England; but the learned Judge added that the scope of these writs in India has been widened by the use of the expression “nature”.

¶376

36. The learned Judge in Dwarka Nath [AIR 1966 SC 81] made it very clear that the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. The learned Judge then clarifies the entire position as follows: (AIR p. 85, para 4)

¶377

“ 4 . … It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.”

¶378

39. this Court has also taken a very broad view of the writ of mandamus in several decisions. In Comptroller and Auditor General of India v. K.S. Jagannathan [(1986) 2 SCC 679 : 1986 SCC (L&S) 345 : (1986) 1 ATC 1 : AIR 1987 SC 537] a threeJudge Bench of this Court referred to Halsbury's Laws of England , 4th Edn., Vol. I, para 89 to illustrate the range of this remedy and quoted with approval the following passage from Halsbury about the efficacy of mandamus:

¶379

“89. Nature of mandamus .— … is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.” (See SCC p. 692, para 19 of the report)

¶380

¶381

In SCC para 20, in the same page of the report, this Court further held: ( K.S. Jagannathan case [(1986) 2 SCC 679 : 1986 SCC (L&S) 345 : (1986) 1 ATC 1 : AIR 1987 SC 537] , p. 693)

¶382

“ 20 . … and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.”

¶383

40. In a subsequent judgment also in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [(1989) 2 SCC 691 : AIR 1989 SC 1607] this Court examined the development of the law of mandamus and held as under: (SCC p. 701, para 22)

¶384

“ 22 . … mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: ‘To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.’ ( Judicial Review of Administrative Action , 4th Edn., p. 540). We share this view . The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ‘to reach injustice wherever it is found’. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.” (emphasis supplied) (See AIR p. 1613, para 21.)”

¶385

91. The question engaged the attention of the Andhra Pradesh High Court in K. Seetharama Dass v. Sikile Moses & others, 1999 (1) A.P.L.J. 406 (HC) . In K. Seetharama Dass ( supra ), the Court was concerned with the helplessness of an Executing Court in executing a money decree against an extraordinarily elusive judgment-debtor, who could not be arrested and brought before the Court to execute the decree by

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any means. The disillusioned decree-holder, as a last resort, turned to the High Court’s jurisdiction under Article 226 of the Constitution and applied for a writ of mandamus , or any other appropriate writ, to cause the judgment-debtor to be arrested and produced before the learned Civil Judge, Narsapur, West Godavari, who was the Executing Court. The objection, that was taken to the Court’s exercise of its jurisdiction in aid of execution, may be best understood the way it is described in paragraph No.8 of the report in K. Seetharama Dass :

¶388

“8. Sri M.R.K. Choudary, learned senior Counsel appearing on behalf of the first respondent does not dispute the jurisdiction of this Court under Article 226 of the Constitution of India to issue an appropriate writ or direction whenever interest of justice requires to do so. But the learned senior Counsel would submit that the remedies available in civil law are also superior in nature compared to the remedies that may be available before the Tribunals with limited jurisdiction and the civil Courts are capable of enforcing their own orders. This Court cannot entertain a writ petition by way of parallel proceeding. This Court should not exercise its discretion in such matters where adequate remedies are available under the Code of Civil Procedure.”

¶389

92. The enormity of resistance that was offered by the judgment-debtor and the way it had rendered the process of execution illusory and of no avail, is described in paragraph No.12 of the report in K. Seetharama Dass thus:

¶390

“ 12. Learned senior Civil Judge referred to the entire history of the case and the tactics and methods adopted by the first respondent to avoid the execution of the decree. Learned Judge observed that the first respondent herein had flouted the orders of the trial Court, as well as this Court and failed to comply with the order of this Court: dated 19-4-1993 to deposit half of the decretal amount, till this date. It is observed by the learned Judge that the first respondent has misused the provisions of the Code of Civil Procedure by prolonging and dragging the proceedings. The orders passed by the Courts are

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frustrated. The learned trial Judge was disposing of the application filed by the petitioner pursuant to the directions of this Court in CMP No. 19151 of 1997 issued by a Division Bench of this Court to consider the request of the petitioner for issuing necessary directions to the police to apprehend the first respondent in connection with the execution of the decree. The learned trial Judge observed that Warrant of arrest was issued by the Court of number of occasions. Neither the Bailiff, nor the AdvocateCommissioner could even enter into the premises to know whether the first respondent was available or not. The learned trial Judge expressed his anguish and concern as to the dilatory tactics adopted by the first respondent in obstructing the judicial process. But, even the said order passed by the trial Court directing the Sub-Divisional Police Officer, Narsapur to provide sufficient and adequate police protection and aid the AdvocateCommissioner for due execution of the arrest warrant remained on paper. It is a sad commentary that so far more than thirty times the trial Court issued warrants during the last six years to apprehend the first respondent-judgment debtor and cause his production in the Court to proceed further in the matter.”

¶393

93. In answering the issue in K. Seetharama Dass , B. Sudershan Reddy, J. (as His Lordship then was of the High Court) observed:

¶394

“ 13. Is it a case where this Court should silently watch this spectacle and refuse to interfere on the ground that there is adequate alternative remedy available to the petitioner?

¶395

14. It is true that this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India will not ordinarily issue a writ in favour of a person, who has adequate alternative remedy. Alternative remedy can never be said to be an adequate alternative remedy unless it is equally convenient, beneficial and effective. The Rule which requires exhaustion of alternative remedy is a Rule of convenience and discretion rather than a rule of law. In other words, it does not bar the jurisdiction of the Court. See: State of U.P. v. Mohd. Nooh (1) AIR 1958 SC 86. May be the existence of adequate alternative remedy is always a factor to be taken into account.

¶396

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15. In B. Govinda Reddy v. Revenue Divisional Officer-cum-LAO, Kurnool (2) 1997 (5) ALD 748, this Court had an occasion to consider the very same question as to whether this Court would entertain a writ petition to implement and execute any and every order and decree passed by a Court of competent civil jurisdiction and accordingly held that the decree holders have to necessarily resort to execution proceedings and get the decrees executed in accordance with law and the Court would normally insist the decree holders to adopt the alternative efficacious remedy available under the Code of Civil Procedure. It is, however, made clear in the said judgment that existence of alternative and efficacious remedy does not operate as a bar in whatsoever manner and effect the jurisdiction of this Court in the matter of exercising its power under Article 226 of the Constitution of India. The Court can always issue appropriate directions whenever and wherever interest of Justice require issuance of such directions. The fact that the petitioners had already availed the remedy available to them in law by initiating execution proceedings may not effect the jurisdiction of this Court under Article 226 of the Constitution of India to issue necessary directions.

¶398

22. The law on the subject is well settled. The matter would be one of discretion. The question to be asked being whether the remedy provided was adequate remedy. The jurisdiction of this Court to issue appropriate writs whenever interest of Justice requires is not limited in any manner whatsoever, except by the Constitutional scheme itself and the self-imposed limitations in exercise of the jurisdiction.

¶399

23. A Division Bench of this Court in Satyanarayana Tiwari v. SHO, PS., Santhoshnagar (11) 1982 (2) ALT 161 : 1983 (1) An. W.R. 114 : AIR 1982 AP 394, while dealing with the question as to whether the High Court can issue a writ or direction to the concerned authorities to enforce the orders of a civil Court observed:

¶400

“Section 151 CPC reserves the inherent power of the Court. Article 226 of the Constitution goes a step further and vests extraordinary jurisdiction in the High Court of a State to issue not only a writ of mandamus but also appropriate writs, directions or orders for the enforcement of any of the right conferred by Part III and for any other purpose. As held by the Supreme Court in Calcutta Gas Company (Prop) Ltd. v. State of W.B. , AIR 1962 SC

¶401

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1044, ‘any other purpose’ means ‘the enforcement of any legal right and the performance of any legal duty’. A legal right, of course, means any legally enforceable right. Nothing more can be a higher purpose than the enforcement of the orders of the Civil Court and that of the High Court which confirms or recognises the rights of a party . By any interpretation of the provisions of CPC the power of the High Court under Art. 226 of the Constitution of India to enforce its own orders or the orders of the Civil Court cannot be curtailed.

¶403

(emphasis supplied)

¶404

24. The petitioner herein made all possible efforts to get the decree obtained by him executed against the first respondent. The trial Court after exhausting the alternative modes available for execution of the decree, finally thought it fit to order arrest of the first respondent. Innumerable warrants were issued for arrest and cause production of the first respondent in the Court to give finality to the execution proceedings. All such attempts proved futile. The first respondent challenged more or less every order passed by the trial Court in the process of execution of the decree. The attempts made by the first respondent to temporarily move or shift from the territorial jurisdiction of the trial Court to avoid execution of the warrant, as observed by the trial Court, highlights the conduct of the first respondent. We are concerned with the dignity and majesty of law. No judicial system can survive unless it commands confidence and respect of the people. The first respondent brings the whole judicial process to a farcical level by successfully avoiding execution of the warrant of arrest issued against him for a period of more than four and half years. It is nothing but subversion of judicial process. In such a situation this Court can never remain to be a silent spectator.

¶405

25. What confidence the subordinate Courts command, if the decrees passed by them are put in a cold storage by the mighty, powerful or unscrupulous litigants?

¶406

26. It is the duty of this Court to protect the judicial process and legitimacy of the subordinate Courts. Otherwise there will be utter chaos and confusion. It is the bounden duty of this Court to uphold and enforce the Rule of law. The High Court exercises control over the

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subordinate judiciary and superintendence over all the Courts throughout the territories in relation to which it exercises jurisdiction. The power of superintendence over the Courts is coupled with the duty to protect the legitimacy of the judicial process at the grassroot level. The subordinate judiciary is not only under the control of the High Court; but also is under the care and custody of the High Court. The High Court has not only the power to enforce the discipline in the subordinate judiciary, but also to protect the dignity and honour of the Subordinate Judiciary. This Court has the necessary power to issue appropriate directions to protect the integrity of judicial process and even to enforce an order passed by the subordinate Courts, if the ordinary mechanism fails to provide the relief and meet the challenge.

¶409

27. The decree obtained by the petitioner perhaps would remain unexecuted for ever, as is evident from the record. It is under those circumstances, the petitioner knocks the door of this Court seeking justice, it is not as if the petitioner failed to avail the remedies provided under the Code of Civil Procedure. The inadequacy of the remedies availed by the petitioner is obvious. It is a clear case where the petitioner is left with no other effective and adequate remedy . In fact, the petitioner invoked the jurisdiction of this Court only after exhausting all the remedies. It is evidently a fit case requiring interference by this Court and interest of justice do require interference. This is one of those rarest of rare cases requiring interference of this Court to protect the dignity, majesty and purity of the judicial process.”

¶410

94. In Kasani Subbamma v. The Government of A.P. and

¶411

others, 1994 (1) A.P.L.J. 117 (H.C.) , the issue arose before the Andhra Pradesh High Court, where a decree of the subordinate Judge, Kowur was found difficult to execute by the Executing Court. The decree was for the payment of compensation relating to land acquired by the State and had become final. The process of execution brought to recover the compensation appears to have failed before the might of the State, who were the acquiring authority and liable to pay. When the High Court was petitioned for a mandamus to execute the decree that had

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become final, a mandamus was issued to deposit the compensation finally determined, in the Court of the Subordinate Judge, within a period of two months from the date of the order. In reaching that conclusion, it was observed in Kasani Subbamma ( supra ):

¶414

“ 3. There are no constitutional fetters placed on the High Court in exercise of jurisdiction under Article 226 of the Constitution of India that merely because an alternative remedy exists, the writ jurisdiction should not be exercised. The exercise of writ jurisdiction is a constituent power conferred under the Constitution to a constitutional court like High Court to issue writs or directions under Article 226 of the Constitution of India. There cannot be any hard and fast rule that in each and every case where there is an alternative remedy, that the writ petition should not be entertained. In appropriate cases, the High Court, being the constitutional court should rise to the occasion to provide effective and speedy remedy, more so, in cases of deprivation of property of a person……. ………. Be it under Article 31 or 300-A of the Indian Constitution, no person can be deprived of his property, save by authority of law and the authority of law being the Land Acquisition Act, there is a duty cast on the land acquisition authorities to pay, the compensation speedily so that the party aggrieved should be able to recompensate his loss of property by proper means, but he will be deprived of the same, if the compensation is paid after a prolonged time by which certainly, there is a deprivation of property unjustly, thus, violating the very object and intendment of the Land Acquisition Act which aims at not only acquiring the property of a person for public purpose, but also compensating the deprived person in a very reasonable time. By not doing so, the authorities in the instant case have certainly violated the fundamental right of the petitioner under Article 31 of the Constitution which is available to her in the instant case as her land was acquired when the fundamental right was in the book of Constitution at the relevant point of time. Even if it is Article 300-A of the Constitution, then also the same measure is applicable. As such, this court is not debarred from issuing appropriate writ or direction for payment of the compensation which the petitioner has fought for and got determined and which determination

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attained finality. Coming to execution proceedings, even the same are pending for more than 3 years and could not be executed. The reasons are obvious. The executing courts are very lenient in executing the decrees against the Government. This is often the experience and in fact this is the general trend while there may be very few exceptions. When the execution is carried out, what is available are ricketty furniture in the office of the Land Acquisition Officer like chairs, tables, almarahs, which will already be subjected for several attachments in several executions. What useful purpose will be served, if the execution proceedings go on like that and the executing court is not able to realise the decretal amount and pay it over to the decreeholder thereby frustrating the very effect of the decree. More often, the decrees pertaining to the land acquisition proceedings have found to be not efficacious because of the prolonged process and lenient view taken by the court depending upon the mercy of the judgmentdebtor to deposit the amounts for which again, there will be a scramble by pairavikars to get the priority from the Government in depositing the decretal amounts. I do not think that the Constitution makers have visualised this situation. As such, I hold that as and when it is brought to the notice of this court that any decree passed against the Government or governmental authorities or any authority which is a State under Article 12 of the Constitution is not honoured and if it is found that execution under civil procedure code is inefficacious because of the delay involved, nothing prohibits this court to exercise its jurisdiction under Article 226 of the Constitution of India for enforcement of the decree to be in consonance of the fundamental right or the constitutional guarantee as the case may be.”

¶417

95. In the case here, the position is not much different. The State of U.P. or the police officers, who are occupying the suit property on behalf of the State, are prima facie not the owners, as they say they are, and which, so far they have not been able to prove or establish in any proceeding. What they are doing by forcibly holding on to possession of the suit property is nothing short of depriving the petitioner of his right under Article 300-A

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of the Constitution. This they are able to do because they are an arm of the State, and that too, one that is armed.

¶420

96. Thus seen, a mandamus can be viewed as a panacea to undo all wrongs, where there is a right, but no mode of redress or one that is effectual. Normally, remedies provided by the law, particularly, before Courts of established jurisdiction, are effective. Nevertheless, in a given case, even the very stable remedy of execution, may become a toothless tiger, faced with a recalcitrant Authority of the State, that is desperate to obstruct the process of execution by employing its statutory power and physical might. This Court has said that it is only in a very rare case that a mandamus may be issued to give effect to a decree. One of those rare species of cases where a mandamus ought be issued in aid of execution is the one that this case presents.

¶421

97. This Court takes judicial notice of the fact that pending hearing of this petition, towards the end of the year 2022, the State Government have altered the existing police setup in the District of Agra from a divided establishment of Executive Magistracy and the Police into the Commissionerate system. Therefore, in the District of Agra, it is the Commissioner of Police, who would step into the shoes of the quondam office of the S.S.P., Agra. The Range or the Zone level officers, like the Deputy Inspector General of Police or the Inspector General, would have no local jurisdiction within the city limits of Agra. In the opinion of this Court, therefore, apart from the writ being issued to the State of Uttar Pradesh represented by the Collector, Agra, who is the judgment-debtor and behind whom the police officials, who are occupants of the suit property stand, it is the Commissioner of Police, Agra, the Station House

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Officer, P.S. Hari Parwat and the Chowki Incharge, Police Chowki Khandari, P.S. Hari Parwat, District Agra, who must also be commanded, though not formally parties to this petition. In any case, the Police Authorities have been sufficiently heard, even personally. They have filed affidavits too and defended their position before this Court.

¶424

98. In the result, this petition succeeds and is allowed . A mandamus is issued to the State of Uttar Pradesh represented by the Collector, Agra and also to anyone sitting in the suit property on behalf of the Collector or otherwise, including the Commissioner of Police, Agra, the S.H.O., P.S. Hari Parwat, Agra, the Chowki In-charge, Police Chowki Khandari, P.S. Hari Parwat, Agra and their subordinate officials in occupation of the suit property, to deliver vacant possession thereof to the petitioner between sunrise and sunset on 10^th October, 2023 , in the presence of the Court Amin , who shall be present on the spot and record proceedings of the day. The petitioner shall remain present at the suit property to take possession of the same. After delivery of possession, the Collector, Agra will submit a report of compliance to the Registrar General of this Court on or before the 12^th October, 2023 , which shall be placed on record. The Amin shall make his report to the Executing Court, who shall dispose of Execution Case No.20 of 1999 in accordance with law, taking into account the Amin 's report. It is further ordered that until judgments are passed in O.S. No.1040 of 2011, Misc. Case Nos.16 of 2021 and 213 of 2022, instituted by the State of U.P. or the S.S.P., Agra (now his successor, the Commissioner of Police, Agra), the suit property shall not be alienated by the petitioner in favour of any third party, nor its nature or character changed in any manner whatsoever, and further that it shall be maintained in good

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repair by the petitioner. In the event of the second respondent or the S.S.P., Agra (now his successor, the Commissioner of Police, Agra) being successful in establishing their right, title and interest to the suit property, as against the petitioner, the petitioner would be bound by the orders passed by the Court in the aforesaid matters, and restitute possession of the suit property to respondent No.2, if so ordered.

¶427

99. Let a copy of this order be communicated to the Collector, Agra, the Commissioner of Police, Agra, the S.H.O., P.S. Hari Parwat, Agra, the Chowki In-charge, Police Chowki Khandari, Agra and the Judge, Small Cause Court, Agra or wherever Execution Case No.20 of 1999 be pending, all through the learned District Judge, Agra by the Registrar (Compliance).

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Order Date :- 15.9.2023 Anoop

¶429

( J.J. Munir, J. )

¶430

Digitally signed by :- ANOOP KUMAR SINGH High Court of Judicature at Allahabad

Dr. B.K.Gupta v. Judge Small Couse Court Agra and Another

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