Allahabad High Court
Uma Kant Chaturvedi And 3 Others vs Addl. Distt. Judge Court No 1 Barabanki ... on 21 February, 2025
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:11426
Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1027 of 2025
Petitioner :- Uma Kant Chaturvedi And 3 Others
Respondent :- Addl. Distt. Judge Court No 1 Barabanki And 11 Others
Counsel for Petitioner :- Adnan Ahmad
Counsel for Respondent :- Purusottam Awasthi
Hon'ble Manish Mathur,J.
1. Mr. Purushottam Awasthi, Advocate has put in appearance for the opp. party Nos. 2 to 6 and 8 to 12 by filing his vakalatnama, which is taken on record.
2. Heard Mr. Adnan Ahmad, learned counsel for the petitioner as also Mr. Purshottam, learned counsel for the opp. party Nos. 2 to 6 and 8 to 12.
3. It is submitted that the opp. party No. 7 is of the same family and at present is out of country, due to which power on his behalf of could not be filed, but the issue is not inimical to that of the private opp. parties.
4. In view of the above, issuance of notice to opp. party No. 7 is dispensed with.
5. Since only a short issue is involved in this petition, same is being adjudicated upon without requiring filing of counter-affidavit.
6. This petition has been filed challenging an order dated 12.2.2025 passed in Regular Civil Appeal No. 61 of 2012, connected with Appeal Nos. 64 of 2012 and 65 of 2012, whereby application for stay in terms of Order XLI Rule 5 of the C.P.C. has been rejected.
7. It has been submitted that the opp. party Nos. 2 to 12 had initially filed Regular Suit No. 732 of 2002 for possession of the suit property. The petitioner has also filed a suit for permanent injunction against the opp. party Nos. 2 to 12 registered as Regular Suit No. 634 of 2001. Both the suits were consolidated and by means of judgment and decree dated 25.5.2012 the suit filed by petitioner was dismissed, while suit filed by the opp. party Nos. 2 to 12 was decreed. The petitioner thereafter filed aforesaid appeals, which were admitted and were consolidated and are at the stage of final hearing.
8. It is further submitted that in the meantime, opp. party Nos. 2 to 12 filed execution proceedings in which vide order dated 28.1.2025 a warrant of possession has been issued due to which the application under Order XLI Rule 5 was preferred in the appeal and has been rejected by means of the impugned order.
9. It has been submitted that once the appeals have already been admitted and are at the stage of final hearing, it was incumbent upon the First Appellate Court to have stayed the judgment and decree passed by trial court, particularly in view of the fact that warrant of possession has been issued in the execution proceedings.
10. Learned counsel for answering opp. parties on the basis of instructions admits that the first appeals have been consolidated and are at the stage of final hearing with next date of 24.2.2025 being fixed.
11. Learned counsel for petitioner on the basis of instructions undertakes that the petitioners would not seek any adjournment in the aforesaid appeals and would cooperate in their early disposal.
12. Considering the fact that regular appeals against the judgment and decree dated 25.5.2012 have been admitted and are at the stage of final hearing, in the considered opinion of this court there was no occasion for the first appellate court to have rejected the said application, particularly since execution proceeding are ongoing with warrrant of possession having been issued and would frustrate the very outcome of first appeals.
13. In view of the submissions and undertakings advaned by learned counsel for the petitioner, the Addl. District Judge (Court No. 1), Barabanki, is directed to decide Regular Civil Appeal No. 61 of 2012, alongwith connected Appeal Nos. 64/2012 and 65/2012 expeditiously either on the next date fixed or within the period of 2 weeks thereafter, in case is there is no legal impediment.
14. In view of the above, the impugned order dated 12.2.2025 passed in the aforesaid appeals is hereby set aside,without interfering with the direction for fixing of early dates in the appeals, and it is directed that till pendency of the aforesaid regular appeals, Execution Case No. 11 of 2018 pending in the trial court, shall remain stayed.
15. It is made clear that the interim order passed by this court shall be subject to cooperation by petitioner in earlier disposal of the appellate proceedings, first appeals and in case he does not cooperate, such a finding be recorded by the first appellate court and the trial court will be at liberty to proceed with the execution proceedings.
16. With the aforesaid directions, the writ petition stands allowed at the admission stage itself.
(Manish Mathur, J.)
Order Date :- 21.2.2025
A.Nigam
