Allahabad High Court
Mohd Abbas And Another vs Khaliquzzama And 82 Others on 28 May, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:96511
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 6931 of 2024
Petitioner :- Mohd Abbas And Another
Respondent :- Khaliquzzama And 82 Others
Counsel for Petitioner :- Adarsh Singh,Nipun Singh
Hon'ble Ajit Kumar,J.
1. Heard Sri Nipun Singh, learned counsel for the petitioner. Perused the record.
2. The submission advanced by learned counsel for the petitioner is that a collusive suit came to be filed being Suit No.207 of 2018 by the respondents-decree holders impleading one Ziyauddin Mansuri as Manager of Abdus Salam Muslim Girls Inter College, Moradabad in their personal capacity as such for a declaratory decree and mandatory injunction to register them as members of the society and forward the same to the Assistant Registrar, Chits Funds and Society, Moradabad and the said suit came to be decreed on the basis of the consent accorded by the defendant exercising power under Order 12 Rule 6 C.P.C. by the Addl. Civil Judge (S.D.), Court No.1, Moradabad on 12.12.2018. Although the defendant, who was impleaded in the personal capacity in the suit, died on 01.09.2020, yet an execution application came to be filed impleading him as dead person with a prayer that since he was Manager of the society therefore, no substitution was required and the executing court can pass orders for performance of the decree. The executing court without issuing notice in the matter passed the order impugned by which the Registrar, Chits Fund and Society, Moradabad has been directed to register the names of the decree holders as members of the society and forward the same to the Regional Joint Director of Education, Moradabad by way of information and then inform the court accordingly.
3. The argument advanced by learned counsel for the petitioner is that the society being a juristic person ought to have been impleaded as one of the defendants in the suit as it is the society which can be impleaded under the by-laws through the Manager and not the Manager through the society and hence the decree was to operate inter se parties and was no binding upon the authorities and was inexecutable against the society. This aspect has been completely over looked by the executing court. It is also argued that the executing court could not have issued such mandatory direction to the Assistant Registrar, Chits and Funds Society, Moradabad and also forwarding the list to the Joint Director of Education who was not party to the decree.
4. It is further submitted that no execution application was maintainable against a dead person and this fact the society brought to the notice of the Court by filing an application for recall of the ex parte decree.
5. Looking to the judgment passed on the basis of consent pursuant to which execution application has been filed and the facts pleaded in the petition, prima facie, arguments advanced by learned counsel for the petitioner appears to have substance and matter requires consideration.
6.However, from the perusal of the order, I find this order passed on 19.08.2021 and petitioners are approaching this Court today in the year 2024 after a lapse of almost two and a half years. It is an admitted position according to the petitioner that nothing further has transpired pursuant to the order of the executing court. In the circumstances, it is directed, in the event petitioner moves an application for recall of the ex parte order in accordance with law within 45 days from today, the same shall be considered and disposed of within a further period of 30 days.
7. With the aforesaid observations and directions, this petition stands disposed of.
Order Date :- 28.5.2024
Deepika
