Allahabad High Court
Sudhir Kumar Agarwal And Another vs Ajay Kumar Agarwal on 22 August, 2023
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:168554
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 8709 of 2023
Petitioner :- Sudhir Kumar Agarwal And Another
Respondent :- Ajay Kumar Agarwal
Counsel for Petitioner :- Kauntey Singh,Kailash Pati Singh Yadav
Hon'ble Prakash Padia,J.
1. The petitioner has preferred the present petition under Article 227 of the Constitution of India with the prayer to quash the order dated 08.05.2023 passed by the Judge, Small Cause Court, Bijnor in Execution Case No.20 of 2023 (Ajay Kumar Agarwal Vs. Sudhir Kumar Agarwal and others). By the aforesaid order, a direction was given by the Judge, Small Cause Court, Bijnor to initiate proceedings of the execution case.
2. It is argued by learned counsel for the petitioner that the execution proceedings were initiated without providing any notice to the petitioner who are the defendants in the original suit. It is argued that when the petitioners came to know regarding the aforesaid execution case, an application has been filed by the petitioners before the Execution Court stating therein that against the order dated 30.11.2022 the petitioners have filed a statutory revision being SCC Revision No.8 of 2023 in the Court of District and Sessions Judge, Bijnor and along with the said revision, an application for interim protection has also been filed on which various dates were fixed but the same is still pending. It is argued that the without considering the aforesaid aspect of the matter, the Execution Court passed the order dated 08.05.2023 which is arbitrary and illegal. Learned counsel for the petitioner placed a photo-copy of the report of the Amin concerned in which a prayer has been made by the Amin concerned to provide proper police force to execute the decree, the aforesaid report is taken on record. 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. Learned counsel for the petitioner prays that the Execution proceedings be stayed till the appropriate orders have been passed in the interim protection application filed along with the revision. It is argued that the next date fixed in the matter is 04.09.2023.
4. Heard learned counsel for the petitioner and perused the record.
5. From perusal of record, it is clear that against the judgement and decree dated 30.11.2022, a statutory revision along with the interim protection application has been filed which is still pending and till date no orders were passed on the aforesaid application and on the other hand, in the execution case filed by the opposite party, the execution Court issued directions to execute the decree despite the fact that statutory revision has already filed.
6. In this view of the matter and in view of the law laid by the Hon'ble Supreme Court in the case of Moolchand (supra), the Court is of the opinion that the Execution Court should not proceed with the matter in a hurried manner despite the fact that the statutory revision has already been filed and the interim protection application is still pending.
7. In the facts and circumstances of the case, the present petition is disposed of directing the Revisional Court to decide the interim protection application filed in the S.C.C Revision No.8 of 2023, if possible, on the next fixed in the matter, i.e., on 04.09.2023. On account of any reason, the interim protection application could not be decided, the same shall be decided within a period of one month thereafter.
8. For a period of two months or till the time decion is taken on the interim protection application whichever is earlier, no coercive action be taken against the applicant.
9. It is made clear that the Revisional Court will pass the orders on the stay application strictly in accordance with law without influencing any observations made by this Court in this order.
Order Date :- 22.8.2023
saqlain
