Dismissed

Smt. Vidya Devi and 2 Others v. Sri Atul Bhatnagar and 2 Others

Allahabad HC21 Feb 2024A227/482/2024

Case brief

AI extract

What is this about?

Challenge to an order by the Executing Court rejecting adjournment in execution proceedings. The High Court found no final order prejudicing rights and noted petitioner's delay in prosecuting appeal, dismissing the petition with cost.

What did the court decide?

Petition dismissed with cost of Rs. 10,000/-

What the court decided

Smt. Vidya Devi and 2 Others vs Sri Atul… — Execution and Attachment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:16176

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Court No. - 8

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Case :- MATTERS UNDER ARTICLE 227 No. - 482 of 2024

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Petitioner :- Smt. Vidya Devi And 2 Others Respondent :- Sri Atul Bhatnagar And 2 Others Counsel for Petitioner :- Pal Singh Yadav,Ashish Kumar Singh,Prathama Singh,Sudhir Kumar Srivastava Counsel for Respondent :- Shyam Ji Vidyawarid Shukla,Navneet Tiwari

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Hon'ble Jaspreet Singh,J.

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Heard Shri Pal Singh Yadav, learned counsel for the petitioners and Shri Shyam Ji Shukla, learned counsel for the private-respondents.

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Under challenge is the order dated 16.01.2024 passed by the Civil Judge (Junior Division) South, Lucknow in Execution Case No.4/2022.

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The submission of the learned counsel for the petitioners is that the Executing Court by passing the impugned order has failed to take note of the earlier order passed by the Executing Court dated 22.12.2020 whereby the Executing Court had refrained from issuing warrant for possession on the ground that an appeal preferred by the petitioners is pending before the lower appellate Court.

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It is further urged that by passing the impugned order it amounts to reviewing the earlier order dated 22.12.2020 without there being any difference or changed circumstances. In absence of any changed circumstances, the impugned order could not have been passed.

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It is further urged that on the one hand the appeal of the petitioners is pending before the lower appellate Court and in case if the impugned order is given effect too it would amount to rendering the appeal otiose and the substantive right of the petitioners would be taken away rendering the

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petitioners remediless. In the aforesaid circumstances, it is submitted that the impugned order deserves to be set aside.

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Learned counsel for the private-respondents has raised an objection that against the orders dated 04.01.2024 and 16.01.2024, none of the rights of the parties have been decided and as they are purely interlocutory orders in nature which may not be interfered with in exercise of powers under Article 226/227 of the Constitution of India.

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It is further urged that the petitioners have been defaulters and in order to avoid the execution of the decree which was passed in favour of the private-respondents in Regular Suit No.49/1971. The petitioners have taken recourse to various measures only to delay the execution of the decree and such an attempt at the behest of the petitioners may not be appreciated and any interference shown by the Court would amount to rewarding the wrong doer.

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It is further urged that reference to the appeal which has been made by the learned counsel for the petitioners is also being delayed by the petitioners themselves and thus despite ample opportunity was granted to the petitioners to get the said appeal decided but it is being delayed. In the aforesaid circumstances, the Executing Court was justified in passing of the impugned orders, which are merely consequential inasmuch as there is no stay on the operation and implementation of the decree and the appeal cannot be kept in abeyance merely on the asking of the petitioners, who have shown no interest in getting their rights adjudicating swiftly. In the aforesaid circumstances, the instant petition is liable to be dismissed.

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The Court has heard learned counsel for the parties and also perused the material on record.

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From the record, it appears that the private-respondents had instituted a suit for eviction against the present petitioners and the said suit bearing No.49/1971 came to be decreed for the first time on 11.01.1988. The petitioners being aggrieved against the said judgment and decree preferred a Regular Civil Appeal and the said appeal was allowed on 04.03.1989 and the matter was remanded with certain directions to ascertain whether the disputed land in question comprised of Plot Nos.2473, 2474 and 2475. After the remand, the matter was again heard and it came to be decreed on 27.10.2021.

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It will be relevant to notice that the judgment and decree dated 27.10.2021 was ex-parte since the petitioners stopped appearing in the said suit. Later the petitioners moved an application under Order IX Rule 13 CPC which also came to be dismissed on 17.08.2022. The petitioners being aggrieved took the matter further by filing a misc. appeal under Order 43 Rule 1(d) CPC which was registered as Misc. Appeal No.140/2022.

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The record further indicates that while there was no stay from the lower appellate Court and the private-respondents had put the decree in execution, the present petitioners moved an application bearing Paper No.C-26 upon which the Executing Court on 22.12.2022 passed an order noticing that since the misc. appeal of the petitioners was pending, hence, the Executing Court at that stage did not find expedient to issue a warrant of possession rather allowed the petitioners with sufficient time to get their appeal adjudicated.

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The record further indicates that despite the said order dated 22.12.2022 having been passed yet the appeal preferred by the petitioners remained pending and it is by means of the order dated 04.01.2024 the Executing Court rejected the application for adjournment moved by the petitioners. It will be relevant to notice that no final order has been passed as yet neither the warrant of possession has been issued and in the meantime the petitioners have approached this Court by means of the instant petition.

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At the outset, from the perusal of the Annexure No.1 which is the order impugned dated 16.01.2024, it would reveal that the matter was listed before the Executing Court on 04.01.2024 upon which the parties were heard and the Executing Court had rejected the application for adjournment of the petitioners noticing that the proceedings were quite old and the ground for adjournment was not sufficient. Thereafter, the matter was listed for hearing and in the post lunch session, after hearing the parties on application bearing Paper No.C-26/C-28, the matter was reserved for passing of orders on 16.01.2024. There is nothing on record to indicate what order was passed on 16.01.2024 rather it only indicates that the matter has been listed on 05.02.2024. Apparently no order has been passed which prejudices the rights of the petitioners. Moreover, learned counsel for the petitioners has filed a supplementary affidavit dated 06.02.2024 by which he has annexed a copy of the proceedings of Misc. Appeal No.140/2022 and from the perusal thereof it also appears that the appeal is pending without much cooperation from the side of the petitioners.

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This Court finds that on 04.02.2023 the misc. appeal of the

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petitioners was dismissed for want of prosecution and thereafter again on the application moved by the petitioners the appeal is pending. The ordersheets also indicates that the petitioners have been prolonging the hearing by moving applications for adjournments and as such it cannot be said that the petitioners are keen in prosecuting the appeal.

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In totality of the circumstances, this Court is of the clear opinion that at the moment the order dated 16.01.2024 is absolutely no order against which the petitioners can be said to be aggrieved.

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The submission of the learned counsel for the petitioners that the manner in which the Executing Court is proceeding is contrary to the order dated 22.12.2022 is also not justified for the reason that the Executing Court had granted opportunity to the petitioners to get the appeal prosecuted. However, as noticed above and evident from the order-sheets, the petitioners have not been keen in prosecuting the appeal on the other hand by making such applications before the Executing Court the intention appears to be clear that the petitioners do not wish to get the matter decided and using various tactics to delay the execution proceedings.

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In view of the aforesaid, the petition is purely misconceived and is liable to be dismissed. Accordingly, the appeal is dismissed with a cost of Rs.10,000/- to be before the District Legal Services Authority within two week from today.

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Order Date :- 22.02.2024 Rakesh/-

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Smt. Vidya Devi and 2 Others v. Sri Atul Bhatnagar and 2 Others

Case brief

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Smt. Vidya Devi and 2 Others v. Sri Atul Bhatnagar and 2 Others

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