Amit Kumar Jaiswal vs Civil Judge (S.D.) Kunda, ...
2022 Latest Caselaw 2263 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 
Case :- MATTERS UNDER ARTICLE 227 No. - 1387 of 2022
 
Petitioner :- Amit Kumar Jaiswal
 
Respondent :- Civil Judge (S.D.) Kunda, Pratapgarh And 3 Others
 
Counsel for Petitioner :- Mohiuddin Khan,Mirza Shariq Aziz,Mohd.Zaid Khan
 
Counsel for Respondent :- Mohammad Aslam Khan
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Heard learned counsel for the petitioner Shri Mohiuddin Khan, Shri M.A. Khan, learned Senior Advocate appearing on behalf of opposite party no.3.

It is the case of the petitioner that he had purchased the land in dispute through registered sale-deed on 07.10.2017 from the opposite party no.4- Rizwan after paying sale consideration. Subsequently, the respondent no.3 namely Mohd. Iman filed a suit for specific performance and permanent injunction before the respondent no.1 registered as Original Suit No.140/2018 [Mohd. Iman vs. Rizwan and Another].

The respondent no.3 claims a decree against the respondent no.4 for specific performance directing him to execute a sale-deed in his favour of the same land as per the sale agreement entered into between the respondent no.3 and respondent no.4 on 17.3.2015. The aforesaid suit proceeded ex-parte against the respondent no.4 and was decreed on 24.01.2022.

The petitioner who was the defendant no.2, contested the suit by filing a written statement and stating that the agreement to sale dated 17.3.2015 was a forged and fabricated document. Respondent no.4 is a literate person but his thumb impression was shown to have been affixed on the agreement to sale. The defendant no.2 is a bona-fide purchaser and his name has been duly mutated in the revenue record and he is in possession of the disputed land. The petitioner moved several applications for deciding his objections and for summoning witnesses for cross-examination. The respondent no.1 without deciding the application decreed the suit on 24.01.2022 and directed the petitioner to execute the sale-deed and hand over possession to the respondent no.3.

It has been argued that the learned trial court failed to consider that the petitioner was in possession over the disputed land on the basis of registered sale-deed dated 07.10.2017 and the said sale-deed has not been challenged by the respondent no.3 despite having full knowledge of the same. It was not as if the sale-deed had been executed after the institution of the suit for specific performance and during the pendency of the litigation between the respondent no.3 and respondent no.4. The sale-deed have been executed on 07.10.2017 and the suit was filed on 22.02.2018, yet the sale deed was not challenged. It has also not been set-aside by the trial court.

It has also been argued that against the judgment dated 24.01.2022 the petitioner filed Regular Suit Civil Appeal No.12/2022 Amit Kumar Jaiswal vs. Mohd. Iman and Another along with the stay application duly supported by the affidavit on 21.02.2022. The appellate court by his order dated 24.02.2022 admitted the appeal and issued notice to the respondent and fixed next date for hearing but it did not pass any order on the application for interim relief. The moment respondent no.3 came to know of filing of appeal he filed an execution case no.1/2022 on 29.3.2022. The respondent no.1 issued notice to respondents in the execution case and fixed the date of 15.4.2022 for disposal of the objection. The executing court thereafter without ascertaining that service report was available on the file, directed the petitioner to execute the sale-deed in favour of the respondent no.3.

It has been submitted by the learned counsel for the petitioner on the basis of judgment rendered by the Hon'ble Supreme Court in the case of Mool Chand Yadav vs. Raza Buland Sugar Company Limited Rampur reported in [ (1982) 3 SCC 484] wherein it has been held that where statutory appeal has been admitted the judicial approach requires that during the pendency of the appeal, the operation of an order having serious civil consequences must be suspended.

Learned counsel for the petitioner has also placed reliance upon a judgment passed by a co-ordinate bench of this Court in Maheshwar Pratap Shahi vs. State of U.P. & Others Writ C No.5923 of 2021 decided on 25.02.2021 wherein placing reliance upon observations made by the Hon'ble Supreme Court in the case of Mool Chand Yadav (supra) it has been held that if the appeal has already been admitted an order staying the operation of the order impugned in appeal should ordinarily be passed. The Court observed that if a stay application was preferred the appellate court will pass appropriate orders on the same taking into consideration the law settled by the Hon'ble Supreme Court in the case of Mool Chand Yadav (supra) preferably within a period of three months from the date of filing of such application and for a period of four months status quo as on the date of judgment was to be maintained between the parties on the spot.

Shri M.A. Khan on the basis of counter affidavit filed today has argued that the petitioner has purchased 5 plots on land for sale consideration of Rs.400000/- only on 07.10.2017 and one plot of land for sale consideration of Rs.100000/- on the same day although he was fully aware that a registered agreement for sale had been executed by the respondent no.4 in favour of the respondent no.3. The petitioner not being a bona-fide purchaser for valuable consideration, cannot be extended protection as given to the appellant in Mool Chand Yadav (supra). The execution case has been filed so that the respondent no.3 can get the fruits of the litigation and reliance has been placed upon judgment rendered by the Hon'ble Supreme Court in the case of Rahul S. Shah versus Jinendra Kumar Gandhi and Others [(2021) 6 SCC 418] to say that it has been observed by the Supreme Court that the executing court must dispose of execution proceedings within six months from the date of filing of the suit which may be extended only by recording reasons in writing for such delay. Several other directions have been issued by the Hon'ble Supreme Court in exercise of its powers under Article 141 of the Constitution with regard to expeditious disposal of execution cases and that the respondent no.1 has rightly directed the petitioner to execute the sale-deed by the next date of listing. It has been argued that no civil consequences would arise if the petitioner, in compliance of the decree is directed to execute the sale-deed.

Shri Mohd. Arif Khan has argued also that the petitioner is in the habit of adopting dilatory tactics. During the pendency of the Regular Suit No.140/2018 also after written statement was filed by both the defendants, one of the defendant i.e., respondent no.4 failed to appear and court proceeded ex-parte against it, the petitioner who is defendant no.2 appeared and filed written statement but did not proceed to cross-examine the plaintiff's witnesses for a long time, therefore, the respondent no.3 filed writ petition no.30546 (MS) of 2019 Mohd Iman vs. Civil Judge (Senior Division), Kunda, Pratapgarh and Others praying for a direction that the trial court should dispose of the suit expeditiously. The Court noted that it is the duty of the trial court to ensure that proceedings are undertaken as per procedure prescribed and procrastination is not permitted by any of the parties in the said suit. It is only after such direction was issued by this Court on 07.11.2019 that the petitioner cross-examined the plaintiff's witnesses.

Shri Mohiuddin Khan in rejoinder has submitted that the petitioner's sale-deed has not been challenged and has also not been set-aside by the learned trial court. He is in possession of the property in dispute and the suit was filed only for specific performance of registered agreement to sale.

This Court after hearing the learned counsel for the parties is of considered opinion that since the appeal has been admitted by the District Judge, Pratapgarh and both the parties have due notice of such appeal, it is directed that both the parties shall complete their pleadings before the appellate court within a period of six weeks from today and the learned appellate court shall consider and decide the appeal within a further period of 12 weeks thereafter. For a period of 18 weeks the order of learned executing court shall not force the petitioner to deliver possession over the property in the suit.

With the aforesaid, the writ petition is disposed of.

Order Date :- 7.5.2022

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