Nasiruddin and 4 Others Vs Gayasuddin and 3 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

MATTERS UNDER ARTICLE 227 No. - 4957 of 2025

Nasiruddin And 4 Others

	Versus	..	...Peti	tioner(s)
Gayasuddin And 3 Others		.....	Respo	ndent(s)
Counsel for Petitioner(s)	: Ravindra Kumar Tiwari	Singh	Raj,	Mohini
Counsel for Respondent(s)	: Ajmal Khan

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Court No. - 7

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HON'BLE JASPREET SINGH, J.

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Heard learned counsel for the petitioners and Shri Osama Mustafa, learned counsel holding brief of Shri Ajmal Khan who has put in appearance on behalf of the respondents no.1 and 2 and has filed his Vakalatnama which is taken on record. Learned counsel for the petitioners has filed a supplementary-affidavit which is taken on record.

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Under challenge is an order dated 12.09.2023 passed by the Civil Judge (Senior Division), Pratapgarh in Execution Case No.11 of 1990 against which the petitioners had filed a Civil Revision bearing No.90 of 2023 which has also been dismissed and in the aforesaid circumstances, the instant petition challenging the two orders have been filed.

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The instant petition has a prelude, The disputes emerge from a registered agreement to sell executed by Hamid Ali @ Samsudding and Majid Khan in favour of Nizamuddin (whose successor have been impleaded as petitioners no.2 to 5) and Nasiruddin who is the petitioner no.1 alongwith Gayasuddin and Bashiruddin, the private respondents no.1 and 2 herein.

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It has been stated that since the private respondents no.3 and 4 (their predecessor who had entered into agreement) could not contest the suit successfully for specific performance of contract, accordingly the suit came to be decreed on 07.09.1990 in favour of the present petitioners and the private respondents no.1 and 2.

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The defendants of the suit (their successors are the private respondents no.3 and 4 herein) preferred a Regular Civil Appeal under Section 96 CPC. During pendency of the said first appeal some sort of arrangement/compromise is said to have been arrived at between the defendants of the suit and the private respondents no.1 and 2, namely, Gayasuddin and Bashiruddin who were also co-decree holder.

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It is alleged that in terms of the said compromise Gayasuddin and Bashiruddin had taken a completely self destructing plea that there was no agreement to sell and they do not support the decree passed in their favour alongwith the present petitioners.

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Apparently, the record indicates that the said compromise was not verified nor an order there upon was passed by the first appellate court. However, the appeal was contested on merit and the first appeal came to be dismissed on 29.09.1995 and the decree of the trial court granting specific performance came to be affirmed on merits. It is admitted case of the parties that the said decree was never challenged by either the present petitioners or the private respondents no.1 and 2 and the same attained finality.

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Be that as it may, the present petitioners moved for execution of the said decree for specific performance dated 07.09.1990. It was informed to the Executing Court that before the first appellate court the private respondents no.1 and 2 had entered into a compromise and were not interested in getting the decree executed, consequently, the sale deed in pursuance of the execution proceedings be executed in favour of the petitioners alone.

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Taking note of the aforesaid application, the executing court passed an order that since the decree was joint and indevisable, accordingly even if the present petitioners wanted execution they would have to deposit the entire sum including what was payable by the private respondents no.1 and 2 and the sale deed would be executed in favour of all the four plaintiffs/decree holders. Apparently, this order was also never challenged by the present petitioners. As a consequence, the court executed the sale deed on 14.03.1997 in favour of the original four plaintiffs which

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included the private respondents no.1 and 2.

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It is, at this stage, that the private respondents no.1 and 2 filed a miscellaneous appeal before the District Judge wherein an order was passed on 18.02.2010 that the plaintiffs (including private respondents no.1 and 2) were directed to deposit the amount of their share and that the sale deed would enure to their benefit as well. This order passed by the appellate court was assailed by the present petitioners by filing writ petition before this Court bearing No.1625 (M/S) of 2010 wherein a Coordinate Bench of this Court by means of order dated 26.03.2010 stayed the operation of the order dated 18.02.2010.

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The said writ petition continued to remain pending as a consequence the proceedings before the execution court also remained in limbo. Later, the said petition bearing No.1625 (M/S) of 2010 came to be dismissed for want of prosecution on 17.11.2021. It is in the aforesaid backdrop that the private respondents no.1 and 2 moved an application before the executing court that the order passed by the first appellate court in Miscellaneous Appeal No0.37 of 1998 had revived, accordingly the amount deposited by the private respondents no.1 and 2 be taken into account and the execution proceedings should be taken to its conclusion by recording satisfaction.

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It is the case of the petitioners that upon moving of the said application on 11.02.2022 by the private respondents no.1 and 2, did the present petitioners got knowledge of the fact that their writ petition bearing No.1625 (M/S) of 2010 had been dismissed for want of prosecution on 17.11.2021. Though an application for recall alongwith an application seeking condonation of delay was moved on 31.08.2022 but the fact remains that the Writ Petition No.1625 (M/S) of 2010 continues to remain dismissed even as of till date. There is nothing on record of the instant case to indicate as to what efforts made by the present petitioners to pursue their recall application but suffice to submit and notice the fact that proceedings before the executing court remained pending.

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The petitioners had moved an application purportedly under Order 21 Rule 26 and 29 CPC requesting the executing court to stay the

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proceedings till such time the matter was heard and decided in Writ Petition No.1625 (M/S) of 2010. The executing court by means of order dated 12.09.2023 dismissed the said application which was further assailed by the present petitioners by filing Civil Revision No.90 of 2023 which was also dismissed on 01.08.2025. In the aforesaid factual backdrop the petitioners have approached this Court assailing the aforesaid two orders in the instant petition.

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The submission of the learned counsel for the petitioners is that the executing court as well as the revisional court have committed a grave error in rejecting the application moved by the petitioners. It is also submitted that once the respondents no.1 and 2 had abandoned their claim by entering into a compromise with the defendants of the suit during pendency of the first appeal, hence they had no right in the property especially when the petitioners had already deposited the entire sum including the amount which was payable by the private respondents nos.1 and 2, hence they cannot be granted any benefit. It is alternatively urged that since the application for recall is pending in the Writ Petition No.1625 (M/S) of 2010, accordingly till the disposal of the said petition the proceedings before the executing court be stayed.

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Learned counsel for the private respondents no.1 and 2, on the other hand, submits that first and foremost the application under Order 21 Rule 26 and 29CPC itself was not maintainable before the executing court. Once the said application was dismissed the revisional court has also affirmed the order and it cannot be said that there is any error as the basic ingredients required for the applicability of Order 21 Rule 26 and 29 CPC is not made out and even otherwise once the application for recall filed in Writ Petition No.1625 (M/S) of 2010 was pending, it was open for the petitioners to pursue their matter but the present petition is not maintainable and deserves to be dismissed.

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The Court has considered the rival submissions and also perused the material on record.

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At the outset, it may be noticed that the disputes in the instant petition is not between the decree holders and the judgment debtors, rather the

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disputes which is sought to be canvased is inter-see between the decree holders. From the bare perusal of the provisions of Order 21 Rule 26 and 29 CPC, it would reveal that it does not take note of or envisages any dispute raised inter-see between the decree holders which could grant any jurisdiction to the executing court to stay the proceedings of execution proceedings.

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Apparently, the provisions as noted and relied upon by the learned counsel for the petitioners has no applicability at all. Even otherwise, if wrong provision of law is quoted yet it may not denude the jurisdiction of the court provided that there is any provision in terms whereof the relief as prayed can be granted. Viewing the matter from the said prespective, it would indicate that there is no provision which grants right to the executing court to stay the proceedings in relation to dispute inter-see the decree holders, once the sale deed has already been executed.

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There is another way of looking at the entire controversy and that is the agreement to sell was in favour of four plaintiffs. The suit was decreed in favour of the four plaintiffs. The first appeal was filed by the defendants of the suit against all the four plaintiffs and it is undisputed that during pendency of the first appeal the private respondents no.1 and 2 (who were amongst the plaintiffs) had entered into a compromise in favour of the defendants against their own claim but the fact remains that the said compromise was never accepted by the first appellate court. The appeal was heard on merits and it was dismissed affirming the judgment and decree passed by the trial court dated 07.09.1990. None of the parties assailed the decree of the first appellate court and the same attained finality. Once that is the admitted position and the decree was put into the execution, the said decree had to be executed as a whole and the executing court could not have gone behind the decree to execute the sale deed in respect of entire parcel of land, which was the subject matter of the agreement to sell, in favour of only two parties, amongst the four plaintiffs.

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It is not disputed that the order passed by the first appellate court was never assailed. It is also not disputed that the order passed by the executing court on 25.02.1997 directing the present petitioners to deposit

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the entire sum including the amount which would have been payable by the private respondents no.1 and 2 as well as the fact that the sale deed would be executed in favour of all the four plaintiffs/decree holders. Since the said order itself was never challenged and the petitioners had acceded to the order passed by the Court, it is not open for the petitioners to take a different stand.

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Be that as it may, since the dispute before this Court is limited only in respect of the application purportedly moved by the petitioners under Order 21 Rule 26 and 29 CPC, hence for the reasons aforesaid that the said provisions have no applicability and the orders passed by the executive court as well as by the revisional court does not suffer from any jurisdictional error which may persuade this Court to entertain the aforesaid petition under Article 227 of the Constitution of India.

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For the aforesaid reasons, the petition is sans merit and is accordingly dismissed.

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(Jaspreet Singh,J.)

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September 1, 2025

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ank

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

Nasiruddin and 4 Others v. Gayasuddin and 3 Others

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Nasiruddin and 4 Others v. Gayasuddin and 3 Others

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