Dismissed

Upendra Upadhyay v. Hari Shankar Mishra and Ors.

Rajasthan HC20 Dec 2023CR/29/2017

Case brief

AI extract

What is this about?

Revision petition dismissed as infructuous. The court held that since the ex-parte decree executed against the respondent had been set aside under Order 9 Rule 13 CPC, the separate suit filed by the objector became infructuous, rendering the order dismissing the bar of separate suit under Order XXI Rule 101 CPC devoid of importance.

What did the court decide?

Revision petition dismissed as having become infructuous after the underlying decree was set aside.

Upendra Upadhyay Vs Hari Shankar Mishra and Ors. — Specific Performance | Rajasthan HC (2023)

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[2023:RJ-JP:40791]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Revision Petition No. 29/2017

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Upendra Upadhyay S/o Late Shri Mahendra Dutt Upadhyay B/c Brahmin, 837, Jat Ke Kuwe Ka Rasta, Chandpole Bazar, Jaipur At Present R/o Plot No.60, Vijaywadi, Path No.1, Opposite Teen Dukan, Sikar Road, Jaipur Raj.

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----Petitioner

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Versus

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Hari Shanker Mishra S/o Shri Madan Lal Mishra, B/c Brahmin, Vandp Hasteda, Teh. Chomu, Distt. Jaipur At Present R/o 20-A, Alkapuri Residential Scheme, Murlipura, Jaipur

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Mahendra Kumar Gupta S/o Shri Gauri Shanker Gupta B/c Mahajan, House No. 2709, Bheru Ji Ka Chowk, Behind Jugal Jodi School, Jat Ke Kuwe Ka Rasta, Chandpole Bazar, Jaipur Raj

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Chetan Sharma S/o Shri Murari Lal Sharma, B/c Brahmin, 29, Alkapuri Residential Scheme, Murlipura, Jaipur

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----Respondents

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For Petitioner(s) : Mr. Ajay Gupta For Respondent(s) : Mr. R. C. Sharma

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HON'BLE MR. JUSTICE ASHUTOSH KUMAR

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Order

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Date of Reserved : : 11/10/2023 Date of Pronouncement : : 20/12/2023

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This revision petition has been filed against the order passed by the Additional District Judge No.3, Jaipur Metropolitan, Jaipur (hereinafter referred to as the 'trial Court') in Civil Suit No.103/2009 (Hari Shankar Vs. Upendra Upadhyay & Ors) whereby the learned trial Court has dismissed the application filed by the defendant-petitioner under Order VII Rule 11 read with Order XXI Rule 101 and Section 151 CPC.

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(2 of 4)

Brief facts for the relevant purposes are that the petitioner and one Mahendra Kumar Gupta entered into an agreement to sell a house/plot No.20-A measuring 93.54 square yards situated at Alkapuri, Murlipura, Jaipur. The petitioner is the purchaser and Mahendra Kumar Gupta is the seller of the property in question.

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As per the agreement, Mahendra Kumar Gupta even after getting part of the consideration did not execute the sale deed in favour of the petitioner and, therefore, the petitioner filed a suit against Mahendra Kumar Gupta for specific performance of the agreement to sell and permanent injunction.

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The suit was decreed by the trial Court ex-parte against Mahendra Kumar Gupta on 10.07.2008. The said Mahendra Kumar Gupta during the pendency of the suit filed by the petitioner, executed a sale deed in favour of the non-petitioner No.1- Hari Shanker Mishra on 08.05.2008.

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The petitioner-decree-holder filed an execution application for execution of the sale deed in compliance of the judgment dated 10.07.2008. In the execution proceedings, Mahendra Kumar Gupta appeared. The subsequent purchaser, non-petitioner No.1Hari Shanker Mishra filed objections in the execution, under Order 21 Rule 97 and 99 of CPC read with Section 151 of CPC. At the same time, the said Hari Shanker Mishra also filed a suit for declaration and permanent injunction on 08.05.2009 praying that the judgment and decree dated 10.07.2008 passed in favour of the petitioner - Upendra Upadhyay by the Additional District Judge No.3, Jaipur Metropolitan, Jaipur in Civil Suit No.01/2008 (Upendra Upadhyay Vs. Mahendra Kumar Gupta) may be declared null and void.

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(3 of 4) [CR-29/2017]

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[2023:RJ-JP:40791]

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In the suit filed by the non-petitioner No.1 - Hari Shanker Mishra, which was numbered as 103/2009 titled as Hari Shanker Mishra Vs. Upendra Upadhyay, present petitioner Upendra Upadhya filed an application under Order VII Rule 11 read with Order XXI Rule 101 read with Section 151 CPC inter alia stating therein that as the said Hari Shanker has filed objection in the execution proceedings for a decree passed in the suit No.1/2008, therefore, as per the provisions under Order 21 Rule 101 CPC a separate suit is barred, as all the questions relating to objections are to be decided in the execution application filed by Upendra Upadhyay.

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Learned trial Court vide the impugned order dated 02.12.2016 dismissed the application filed by the petitioner under Order VII Rule 11 CPC read with Order XXI Rule 101 read with Section 151 CPC.

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Against the said order of dismissal of application, the present revision petition has been filed.

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Learned counsel for the petitioner submitted that all the questions of the objector - Hari Shanker are to be decided by the Executing Court while disposing of the objection filed by Hari Shanker by way of application under Order 21 Rule 97, 99 read with Section 151 CPC.

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Learned counsel for the respondents submitted that decree which was passed in favour of the present petitioner in Civil Suit No.1/2008 decided on 10.07.2008 was passed ex-parte against Mahendra Kumar Gupta. Learned counsel argued that Mahendra Kumar Gupta submitted an application for quashing and setting aside the ex-parte decree before the learned trial Court. The

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(4 of 4)

learned trial Court, however, rejected the application and thus, the matter travelled upto this Court and this Court remanded the matter to the trial Court. Learned trial Court allowed the application under Order 9 Rule 13 CPC filed by Mahendra Kumar Gupta and set aside the judgment and decree dated 10.07.2008 and ordered that the original suit be taken to its original number. 11. Heard learned counsel for the parties and perused the material available on record.

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In view of the facts and circumstances of the case, as the very judgment and decree dated 10.07.2008 for which execution was filed and objections were also filed, has already been set aside by the learned trial Court under Order 9 Rule 13 CPC. Therefore, the suit filed by Hari Shanker Mishra for getting the decree and order dated 10.07.2008 set aside has now become infructuous.

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In light of discussions aforesaid, the impugned order dated 02.12.2016 passed in the suit No.103/2009 (Hari Shanker Vs. Upendra Upadhyay & Ors) on the application under Order VII Rule 11 CPC read with Order XXI Rule 101 read with Section 151 CPC has lost its importance, therefore, the revision petition filed against the said order is rendered infructuous.

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The revision petition is dismissed as having become infructuous.

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(ASHUTOSH KUMAR),J

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A. ARORA /-(Reserved).

Upendra Upadhyay v. Hari Shankar Mishra and Ors.

Case brief

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Upendra Upadhyay v. Hari Shankar Mishra and Ors.

Case brief

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