HIGH COURT OF JUDICATURE AT ALLAHABAD (Judgment reserved on 21.04.2011) (Judgment delivered on 07.07.2011) Case :- WRIT - C No. - 6190 of 1997 Petitioner :- Phul Chand Yadav & Others Respondent :- Kedar Yadav & Others Petitioner Counsel :- L.C. Pandey,I.D. Misra,P.K. Kashyap Respondent Counsel :- C.S.C.,Arun Kumar Singh Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the parties.
The absurdity of the view taken by 5th A.D.J., Azamgarh while passing the impugned judgment and order dated 16.11.1996 through which Civil Revision no.270 of 1993 was allowed is not only shocking to the judicial conscience but also to the common sense.
Respondent nos.1 and 2, Kedar Yadav and Ram Lal Yadav instituted O.S. no.95 of 1965 against Balraj Yadav since deceased and survived by the three petitioners, Gram Sabha Pitamberpur and State of U.P. who were proforma defendants. The relief claimed in the plaint of the suit was for removal of two huts, some cattle troughs cattle pegs and gher put by Balaraj Yadav. The suit was dismissed by the trial court. However, appeal filed against the said judgment and decree was allowed by the lower appellate court. Against the judgment and decree passed by the lower appellate court a Second appeal no.785 of 1969 was filed in this High Court. In the second appeal stay order was granted, however, the second appeal was dismissed in default. Thereafter the second appeal was restored but mean while plaintiffs respondent nos. 1 & 2 got possession of the property in dispute in execution of the decree (passed by the lower appellate court). Thereafter, second appeal was allowed on 22.09.1982. Judgment and decree passed by the lower appellate court was set aside and judgment and decree passed by the trial court (dismissing the suit) was restored.
After the second appeal was allowed, petitioners filed application for taking back the possession as they had been dispossessed in execution. Unfortunately, in the said application correct provision of law i.e. Section 144 C.P.C. was not mentioned and the said application was shown to be under order XXI, Rule 32 C.P.C. The opposite parties in the execution case, i.e. plaintiffs-respondent no.1 and 2 pointed out this defect to the executing court. The executing court refused to entertain such a highly technical plea and after rejecting the objection issued paravana Dhakal on 29.09.1993. The said order was passed by Munsif City Azamgarh in execution case no.29 of 1984. Against the said order respondent no.1 and 2 filed Civil Revision no.270 of 1993 which was allowed by Vth A.D.J. Azamgarh on 16.12.1996. The said order has been challenged through this writ petition. The Additional District Judge held that under order XXI Rule 32 C.P.C. the executing court had no jurisdiction to pass the order of possession/delivery of possession.
Quoting a wrong provision is never fatal. It is correct that the application was not maintainable under order XXI Rule 32 C.P.C. However, it was fully maintainable under Section 144 C.P.C. before the same Court where it was filed.
It appears that the A.D.J. who allowed the revision was not even aware that there is a provision in the C.P.C. which covered the situation i.e. Section 144 C.P.C.
Learned counsel for the respondent nos.1 and 2 has raised some further technical points, one of which is that on 26.02.1997 an order was passed in this writ petition directing the petitioners to take steps within two weeks failing which petition would be deemed to have been dismissed, however, steps were taken quite late. As petitioners are not in possession and respondent nos. 1 and 2 are in possession hence delay was for the benefit of the respondents and not of the petitioners. No interim order could either be granted or was in fact granted in favour of the petitioners in this writ petition. In any case delay in taking steps is condoned.
The next argument is that after filing of this writ petition application seeking amendment in the execution application (quoting correct provision i.e. Section 144 C.P.C.) was filed which was rejected and review filed against the same was also rejected by the executing court. This will not make any difference. No amendment could be entertained by the trial court after the decision by the revisional court particularly when the matter was sub judice in this High Court. The said application filed by the petitioners was redundant.
Accordingly, writ petition is allowed, Judgement and order passed by the lower revisional court is set aside and judgment and order passed by the executing court is restored. It is directed that without any further delay petitioners should be put in possession. They are also entitled to damages @ Rs.3000/- per year since the date of the judgment and order passed by the lower revisional court till actual delivery of possession.
Order Date :- 7.7.2011 vkg