This single-paragraph order dismisses Article 227 writ petition challenging a District Judge's order rejecting execution application under Order XXI CPC. The court held such orders are revisible under Section 25 P.S.C.C._ACT and writ is not maintainable.
Writ petition dismissed as not maintainable; petitioner directed to file revision before the High Court.
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WPMS No.2043 of 2008
Hon’ble Sharad Kumar Sharma, J.
Mr. Sanjay Kumar, Advocate holding brief of Mr. Tapan Singh, Advocate for the petitioner.
Mr. M.S. Tyagi, Advocate for the respondent.
The petitioner has filed this writ petition for the following reliefs:-
“(A) Issue a writ, order or direction in the nature of certiorari quashing the order dated 22.08.2008 passed by learned District Judge in Misc. Case No.274 of 2008, Durgesh Kumar vs. Ashok Kumar [contained annexure no.10 to this writ petition] and further be pleased to allow the objection filed by the petitioner [contained Annexure No.8] to this writ petition.
(B) Issue any other order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case.
(C) Allow the petition and award the cost of it in favour of the petitioner.”
As would be reflected from the records that the order which is put to challenge on 22.08.2008 before the learned District and Sessions Judge, Haridwar, in fact, was an order which was passed by the Executing Court in Execution Case No.5 of 2008, Durgesh vs. Ashok Kumar, whereby, the Miscellaneous Case No.274 of 2008, Durgesh Kumar vs. Ashok Kumar, as preferred by the present petitioner/revisionist, the judgment debtor for invoking the provisions contained under Order 21 Rules 97, 99,101 of Code of Civil Procedure had been rejected.
It is the settled proposition of law that as against the orders passed in the execution proceeding while considering the application under Order 21 Rule 97, would be revisable either under Section 25 of the P.S.C.C. Act and no writ petition by invoking the writ jurisdiction under Article 227 of the Constitution of India would be maintainable.
In response to it, the learned counsel for the petitioner is incapacitated to explain any plausible answer to the legal plea as raised by the respondent’s counsel regarding maintainability of the writ petition.
In view of the aforesaid preliminary objection only the present writ petition is dismissed as not maintainable, however, it will be open for the petitioner to seek an appropriate remedy available to him under law by filing a revision against the impugned order.
Hence this writ petition is dismissed as not maintainable for the above reasons.
(Sharad Kumar Sharma, J.) 04.04.2019 Ravi
2 issues framed by the court
Whether a writ petition under Article 227 is maintainable against an order passed in execution proceedings under Order XXI Rule 97 CPC.
The viability of filing an objection to the rejection of an execution application under Order XXI Rules 97, 99, 101 CPC.
Tapan Singh
Ashok Kumar
Sharad Kumar Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
