Allahabad High Court
Abdul Shahid Alias Ajju vs Mohammad Ehtesham And 2 Others on 2 August, 2023
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
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Neutral Citation No. - 2023:AHC:153945
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 7397 of 2023
Petitioner :- Abdul Shahid Alias Ajju
Respondent :- Mohammad Ehtesham And 2 Others
Counsel for Petitioner :- Umesh Vats,Irfan Alim Siddiqui
Hon'ble Prakash Padia,J.
1. Aggrieved with the order dated 26.05.2023 passed by the In-Charge District Judge/A.D.J. Court No.1 Allahabad in Execution Case No.11 of 2013 (Mohd. Ehtesham Vs. Abdul Shahid), the petitioner has preferred the present petition.
2. It is argued by learned counsel for the petitioner that in the Revision being Revision No.04 of 2013 filed by the petitioner/revisionist, an application No.04C under Section 47 of the C.P.C. was filed which was registered as Misc. Case No.31 of 2018 and the samewas rejected by the Court below vide its order dated 22.05.2023. It is argued that against the order dated 22.05.2023, a revision being Revision No.122 of 2023 (Abdul Shahid Alias Ajju Vs. Mohammad Ehtesham And 2 others) has been filed by the petitioner/revisionist along with the stay application. It is argued that since in the aforesaid revision, legal questions have been involved and the same is admitted and still pending, and notices were also issued to the opposite party, the Court below should grant interim protection in favour of the petitioner/revisionist. Learned counsel for the petitioner relied upon a judgment of the Supreme Court in the case of Mool Chand Yadav and another Vs. Raza Buland Sugar Co. Ltd. Rampur reported in (1982) 3 SCC 484. Counsel for the petitioner relied upon paragraph Nos.3 and 4 of the judgement, relevant portion of the paragraph Nos.3 and 4 which are quoted below:-
"3. An appeal from this order was preferred being F. A. F.O. No. Nil. of 1982. We are told that appeal was admitted and notice of motion was taken out for suspension of the Order under appeal. But the Division Bench of the Allahabad High Court declined to grant stay. Hence, this appeal by Special Leave Petition.
4. We heard Mr. S.N. Kacker, learned Counsel for the appellants, and the respondents appeared by Caveat through Mr. Manoj Swarup, Advocate. We are not inclined to examine any contention on merits at present, but we would like to take notice of the emerging situation if the operation of the order under appeal is not suspended during the pendency of the appeal. If the F.A.F.O. is allowed, obviously Mool Chand Yadav would be entitled to continue in possession. Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand would have to vacate the room and handover the possession to the respondents in obedience to the Court's order. We are in full agreement with Mr. Manoj Swarup, learned advocate for respondents, that the Court's order cannot be flouted and even a covert disrespect to Court's order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal, Mr. Manoj Swarup may be wholly right in submitting that there is intentional flouting of the Court's order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted."
3. Heard learned counsel for the petitioner and perused the record.
4. In view of the order proposed to be passed herein, no useful purpose would be served by putting the opposite party to notice and keeping this petition pending before this Court. However, in case the opposite party feels aggrieved by the order his/her right to seek modification/variation of the order is being kept reserved.
5. In the facts and circumstances of the case, the present petition is disposed of directing the Revisional Court before whom the revision being Revision No.122 of 2023 (Abdul Shahid Alias Ajju Vs. Mohammad Ehtesham And 2 others) is pending, to consider the application for grant of interim protection and decide the same, if possible, on the next date fixed in the matter. If on account of any reason, the same could not be decided, the aforesaid application shall be decided within two weeks thereafter, if there is no legal impediment.
6. For a period of three weeks or till the decision on the stay application, no coercive action shall be taken against the petitioner.
Order Date :- 2.8.2023/saqlain
