Allahabad High Court
Jai Govind Rai vs Janki Kunwar (Since Deceased) And ... on 4 January, 2023
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- MATTERS UNDER ARTICLE 227 No. - 11905 of 2022
Petitioner :- Jai Govind Rai
Respondent :- Janki Kunwar (Since Deceased) And 7 Others
Counsel for Petitioner :- Pramod Kumar Singh Paliwal
Hon'ble Ajit Kumar,J.
Petitioner is permitted to correct the status of petitioner No. 1 in the array of parties forthwith.
Heard Sri Pramod Kumar Singh Paliwal, learned counsel for the petitioner.
The petitioner claims to be a public spirited person and had earlier approached this Court along with one Prem Chand Gupta vide Public Interest Litigation (PIL) No. 1900 of 2020 for a writ of mandamus to the District Judge, Azamgarh, to take over the property of the Public Trust.
The Division Bench of this Court declined to interfere in the matter on the ground that since it was a decree passed by the Civil Court in O.S. No. 01 of 1951 and O.S. No. 02 of 1951, of which the petitioner could have sought execution. The order passed by the Division Bench is reproduced hereunder:
"1. This petition for writ is preferred for reliefs mentioned below:
"(I) to issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 the learned District Judge, Azamgarh to take over the Property of the Public Trust in his own supervision in view of the judgment dated 21.09.1957 (Annexure No. 1 of this writ petition) passed by the learned District Judge, Azamgarh in Original Suit No. 02 of 1951 as well as in view of the judgement dated 28.02.1967 (Annxure No. 2 of this writ petition) passed by this Hon'ble Court in the First Appeal No. 467/1957.
(II) to issue a writ, order or direction in the nature of Mandamus directing the respondent no. 2 the learned District Judge Azamgarh to hold that Suit No. 25 of 1967 and its judgment dated 26.04.1984 (Annexure No. 4 of this writ petition) is null and void, therefore it has no legal authority or legal force."
2. A bare perusal of the reliefs, referred above, make it clear that petitioners are desirous to have execution of a decree granted by Civil Court in a suit proceeding. We do not find any just reason to get a decree executed by invoking the powers under Article 226 of the Constitution of India. A complete procedure in that regard is prescribed under the Code of Civil Procedure, 1908.
3. A direction is also sought to declare a subsequent judgment and decree passed by Civil Court null and void. For that purpose also adequate remedy is given under the Code of Civil Procedure, 1908.
4. In view of whatever stated above, no interference is warranted. Writ petition is dismissed."
It is in the light of the aforesaid liberty granted by the Division Bench of this Court, the petitioner moved an Execution Case No. 02 of 2021 and submits that in the matter of perpetual injunction, a decree is executable at any point of time and the proceedings will not be barred by limitation. He, thus, seeks a direction to get Execution Case No.02 of 2021 be decided as expeditiously for the execution of the judgment and decree dated 28th February, 1957.
From the perusal of the judgment passed by the Civil Court, I find that a number of directions have been issued and therefore, there can be a question of limitation, but this is not the stage to make any observation regarding the same. It is always open for the executing court to look into the question of limitation so as to determine whether the decree is still executable or not.
In view of the above, this petition stands disposed of with the direction to the executing court to dispose of the execution case as expeditiously as possible, preferably within a period of six months from the date of presentation of the certified copy of this order along with an application strictly in accordance with law on merits including on the question of limitation.
It is clarified that in the event, this order could not be carried out within the time frame fixed for any technical reason, then for such delay in disposal of the appeal and pendency thereof itself shall ordinarily not be a ground sufficient enough to fasten the authority concerned with personal liability of contempt.
Order Date :- 4.1.2023
SP
