Allahabad High Court
Pradeep Kumar Gupta vs Smt. Paudhary Devi And 3 Others on 5 December, 2022
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 2166 of 2021
Petitioner :- Pradeep Kumar Gupta
Respondent :- Smt. Paudhary Devi And 3 Others
Counsel for Petitioner :- Shyam Babu Vaish,Sanjay Babu Kesherwani
Counsel for Respondent :- Brij Raj,Virendra Kumar Yadav
Hon'ble Ajit Kumar,J.
Sri Viredra Kumar Yadav, learned counsel for the respondent on previous occasion had sought time to prepare and argue the case, but today, he says that despite repeated efforts, he could not obtain instructions in the matter.
This Court does not find it to very appropriate for a counsel to fist seek adjournment for preparation of case and then to make statement that he is not having any instructions.
In the circumstances, the Court proceeds to hear the matter taking Mr. Virendra Kumar Yadav is counsel in the matter on behalf of the respondent as vakalatnama has not stood withdrawn till date.
Heard Sri Shyam Babu Vaish, learned counsel for the petitioner.
By means of present petition filed under Article 227 of the Constitution, the petitioner has questioned the propriety of the executing court in recalling its order dated 4th February, 2021 whereby parwana bedakhli pursuant to the judgment dated 10.02.2012 pursuant to judgment that has stood intact.
From perusal of the records that have been appended alongwith petition, it transpires that a release application under Section 21(1)(a) was allowed vide an ex parte order dated 10.02.2012 in respect of which a restoration application was filed by the tenant which was entertained registering miscellaneous case no. 5 of 2013, however that miscellaneous case was got rejected for want of prosecution by the prescribed authority vide its order dated 7.2.2020. It is stated vide paragraph 14 and 15 that neither any miscellaneous application was filed in respect of the order dated 7.2.2020, nor any appeal was preferred against the judgment and order dated 10.02.2012 of the Prescribed Authority and hence proceeding of release have stood concluded and execution of the release was inevitable. However, in order to defeat execution, it appears some miscellaneous application was got moved again in respect of ex parte release granted by the prescribed authority on 15th February, 2021 upon which, notices were issued and it is on that basis that miscellaneous a application was moved before executing court/prescribed authority bearing no. 28-C to recall its order dated 4.2.2021. No counter affidavit has been filed in the matter disputing averments so made in paragraph 14 and 15 of the of the petition supported by affidavit.
In the circumstances, I take all these pleadings to be admitted to the contesting respondent. Learned counsel appearing for the respondent also could not satisfy as to why the order dated 4.2.2021 should be taken to be justified order.
Once miscellaneous restoration application in respect of ex parte order granting release was rejected by the Prescribed Authority dated 7.2.2020, may be on the ground that applicant did not appear to pursue that application, a subsequent application of same nature was certainly not entertainable by the Prescribed Authority, and therefore, merely even on this issue of a subsequent application for restoration being moved by the contesting respondent, the Prescribed Authority/Executing Authority was not justified in recalling its order dated 4.2.2021.
In such circumstances, therefore, I am not able to sustain the order passed by the Prescribed Authority/Executing Authority dated 15th February, 2021 and the same is accordingly hereby set aside . The Prescribed Authority/Executing Court shall proceed in accordance with law in the matter.
The petition is allowed in above terms. No order as to cost.
Order Date :- 5.12.2022
Sanjeev
