Allahabad High Court
Devendra Kumar Kesarwani vs District Judge Allahabad And 2 ... on 6 July, 2021
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 2
Case :- MATTERS UNDER ARTICLE 227 No. - 2067 of 2021
Petitioner :- Devendra Kumar Kesarwani
Respondent :- District Judge Allahabad And 2 Others
Counsel for Petitioner :- Kshitij Shailendra,Sanjay Singh,Vijay Kumar Vaishya
Hon'ble Suneet Kumar,J.
Head learned counsel for the petitioner through video conferencing.
The grievance of the petitioner is that against the judgment and decree passed in Original Suit, petitioner preferred Civil Appeal No. 31 of 2015 (Devendra Kumar Kesarvani Vs. Dharmendra Kumar Kesarvani). It is urged that execution is proceeding, however, temporary injunction application in the appeal could not be decided. Accordingly, this Court on 18.03.2021 passed the following order:
"Heard learned counsel for the petitioner.
The present petition has been filed inter-alia with the prayer to stay the effect and operation of the judgement and decree dated 15.01.2015 passed by the Civil Judge (Senior Division) Allahabad in Original Suit No.293 of 1994 (Dharmendra Kumar Kessarvani Vs. Devendra Kumar Kesarvani & another) as well as the proceedings of Execution Case No.5 of 2015. A further prayer has also been made to direct the District Judge Allahabad to summon the file of Civil Appeal No.31 of 2015 (Devendra Kumar Kesarvani Vs. Dharmendra Kumar Kesarvani) and grant stay of effect, operation & execution of the judgement & decree passed by the Civil Judge (Senior Division) Allahabad in Original Suit No.293 of 1994 and also stay the execution proceedings of Execution Case No.5 of 2015.
It is argued by Sri Kshitij Shailendra, learned counsel for the petitioner that in Original Suit No.293 of 1994 filed by Dharmendra Kumar Kessarvani plaintiff-respondent, in which the petitioner was defendant, a decree dated 15.01.2015 was passed by the trial court against him. Aggrieved with the aforesaid judgment and decree, a Civil Appeal No.31 of 2015 has been filed by the petitioner-defendant namely Devendra Kumar Kesarvani. It is argued that though the aforesaid appeal was admitted, no interim order was granted in his favour by the appellate court till date. It is argued that in the meanwhile, in order to execute the decree dated 15.01.2015, the respondent-plaintiff filed an Execution Case No.5 of 2015. It is argued that the plaintiff-respondent is bent upon to execute the decree in his favour. It is argued that once the appeal is admitted, the appellate Court is duty bound to grant interim order specially in view of the law laid down by the Apex Court in the case of Mool Chand Yadav and another Vs. Raza Buland Sugar Co. Ltd. Rampur reported in 1983 AWC 121 SC. It is argued that the next date fixed in the appeal is 20.03.2021 as well as in execution case is 08.04.2021. It is further argued that the appeal is pending in the Court of Additional District Judge Court No.2 Allahabad and the aforesaid court is vacant since long and prays that to direct the District Judge, Allahabad to transfer the case and hear the matter.
Heard learned counsel for the parties and perused the record.
In the fact and circumstance of the case, the petitioner is directed to submit an application along with the copy of this order before the District Judge, Allahabad regarding transfer of the case. In case, such an application is filed by the petitioner before the District Judge, he will either hear the matter himself or to transfer the case in some other appropriate court fixing 05.04.2021. Counsel for the petitioner is further directed to press his stay application filed in the appeal on the next date, i.e., 05.04.2021.
Put up this matter as fresh for further arguments on 06.04.2021."
It is urged that pursuant thereof, the learned Court heard the arguments on temporary injunction application and reserved the order on 05.04.2021 fixing 13.04.2021 for delivery of the order. It is urged that till date, the order has not been pronounced.
Be that as it may, petition is disposed of with direction to the Court below to deliver the order on temporary injunction application reserved on 05.04.2021, expeditiously, preferably within four weeks from the date of production of a copy of this order, provided there is no other legal impediment.
Order Date :- 6.7.2021
P. Sri.
