Allahabad High Court
Girish Chandra Mishra vs Vinod Kumar Patel And 2 Others on 3 January, 2023
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 9
Case :- CONTEMPT APPLICATION (CIVIL) No. - 5546 of 2022
Applicant :- Girish Chandra Mishra
Opposite Party :- Vinod Kumar Patel And 2 Others
Counsel for Applicant :- Krishna Mohan Misra,Abhishek Misra,Sr. Advocate
Counsel for Opposite Party :- Chandan Kumar,Sujeet Kumar Rai
Hon'ble Prakash Padia,J.
List has been revised. Nobody is present on behalf of applicant though Shri Sujeet Kumar Rai, learned counsel is present on behalf of opposite party.
The present contempt application has been filed for non-compliance of the judgment and order dated 01.06.2022 passed in WRIT - A No. - 8418 of 2022 (Girish Chandra Mishra vs. State Of U.P. And 3 Others). The order is reproduced below:-
"Heard Sri H.R. Mishra learned Senior Counsel assisted by Sri Krishna Mohan Misra learned counsel for the petitioner and Sri Pramod Kumar Srivastava learned Standing Counsel for the State.
The proceedings under Section 128 of the U.P. Co-operative Societies Act, 1965 initiated at the instance of the petitioner culminated with the passing of an order/award on 14.9.2021. The order/award so passed gave rise to an appeal under Section 98(n) which was instituted by the opposite party no. 4 and the same has also been dismissed by judgment/order dated 21.4.2022.
Learned counsel for the petitioner has submitted that with the rejection of the appeal filed by the opposite party no. 4 on 21.4.2022, the matter has attained finality. It is further submitted that no proceedings whatsoever have been initiated by the opposite party no. 4 as against the rejection of the appeal on 21.4.2022.
A writ of mandamus is sought for execution of the order passed by the competent authority under Section 128 of the U.P. Co-operative Societies Act on 14.9.2021. Execution of any such order is provided for under Section 92 of the U.P. Cooperative Societies Act, 1965.
A plain reading of the aforesaid provision reveals that the recovery certificate is to be issued by the competent authority in respect of the orders including an order under Section 128 of the Act.
In the instant case, once the appeal was rejected on 21.4.2022, it can safely be said that the order passed by the competent authority under Section 128 of the Act has attained finality. For the purposes of execution, it was open to the petitioner to have approached the competent authority for issuance of recovery certificate. A minimum process of notice to the judgment debtor is necessary who may at the first instance choose to comply with the order so passed. It is in the event of default that a recovery certificate may be issued by the competent authority under Section 92 of the U.P. Co-operative Societies Act. Rushing to the Court for a writ of mandamus to seek execution of the order passed by the competent authority appears to be hasty.
Nevertheless this Court in the facts and circumstances of the case hereby directs the competent authority to proceed with the execution of the case in case an application for issuance of recovery certificate is submitted within a period of 15 days from today. The competent authority on an application being filed may proceed to issue a notice of the same to the judgment debtor giving an opportunity of making compliance. In the event of default, necessary orders for issuance of the recovery certificate and its execution may accordingly be passed expeditiously and preferably within a period of three months from the date of submission of the application.
This order is however subject to any proceedings which may have been initiated by the opposite party no. 4 before any higher forum.
The writ petition is accordingly disposed of."
It is argued by the counsel for the respondent-Bank that after the aforesaid contempt petition was filed, the order which was passed in favour of the applicant/petitioner, the bank filed the petition before this court being Writ A No. 16343 of 2022 which was duly entertained and notices were issued to the present applicant who was arrayed as respondent no.4 in that writ petition.
In this view of the matter, it is argued that the present contempt petition has now become infructuous and is liable to be dismissed.
Since nobody is present on behalf of applicant, the present petition is dismissed in default.
Order Date :- 3.1.2023
Swati
