Allahabad High Court
Saleem vs Kamlesh Kumar on 15 November, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:203286
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 14068 of 2025
Saleem
.....Petitioner(s)
Versus
Kamlesh Kumar
.....Respondent(s)
Counsel for Petitioner(s)
:
Ritik Raj, Shiv Om Vikram Singh Chauhan
Counsel for Respondent(s)
:
Harshdeep Kushwaha, Vivek Kumar Awasthi
Court No. - 36
HON'BLE ROHIT RANJAN AGARWAL, J.
1. Heard Shri V.S. Gupta, learned Senior Counsel assisted by Shri Ritik Raj, learned counsel for the petitioner and Shri Sarv Singh, learned counsel for the respondent.
2. This matter under Article 227 of the Constitution of India has been filed assailing the order dated 14.10.2025 passed by the Civil Judge (Senior Division), Banda in Execution Case No. 48 of 2024 allowing the application 43C2 filed by the decree holder-respondent.
3. Facts in nutshell are that respondent-decree holder filed S.C.C. Suit No. 8 of 2010 for arrears of rent and eviction of the shop let out to the petitioner at a monthly rent of Rs. 400/-. According to the plaint version, rent from 19.11.2004 to 30.11.2009 was not paid amounting to Rs. 24,160/- nor the water tax amounting to Rs. 3,020/- was paid. The suit was contested by the petitioner and a written statement was filed. The trial court decreed the suit, against which, the S.C.C. Revision was preferred which was also dismissed. Execution Case No. 48 of 2024 was filed in which objections were filed under Section 47 C.P.C. which was rejected. On 04.10.2025, spot survey was made by the Amin appointed by the court and delivered the possession of shop measuring 3 feet X 11 feet. On 23.01.2025, the judgment debtor filed an application that the entire property including the shop was purchased by one Smt. Reshma sold by the legal heirs of Bharosa alias Bharosi on 21.04.2015 and possession was handed over to Smt. Reshma, who is running a business in the name of SS Enterprises. The respondent-decree holder filed application 43C2 on 13.10.2025 stating that disputed shop measures 6 feet 9 inches X 11 feet, out of which, only a possession in respect of 3 feet X 11 feet has been given. Along with the said application, a copy of Amin report dated 22.12.2005 in Suit No. 375 of 2005 was filed wherein the area of shop described as 6 feet 9 inches X 11 feet. The application 43C2 was allowed on 14.10.2025. Hence, the present writ petition.
4. Shri Vishnu Gupta, learned counsel for the petitioner submitted that there is a dispute as to the boundaries of the shop in question. According to him, already an objection was filed by Smt. Reshma under Order 21 Rule 97 C.P.C. on basis of sale deed dated 21.04.2015 executed by Smt. Maya Devi in her favour. The objections were dismissed on 10.09.2025, against which, a civil appeal was preferred which is pending consideration. He also submitted that decree holder had also filed an Original Suit No. 68 of 2018 against Smt. Maya Devi and others for the cancellation of sale deed dated 21.04.2025. According to him, once such is the position, the application could not have been allowed.
5. Shri Sarv Singh, learned counsel appearing for the respondent has placed before the Court the order dated 07.11.2025 passed by the execution court on Paper No. 51C2 and objection Paper No. 53C2 decided by the executing court. According to him, the judgment debtor after the order dated 14.10.2025 was passed moved another application. According to him, the executing court after noting that earlier application was already rejected, proceeded to reject the application 51C2 filed by the judgment debtor on 07.11.2025. According to him, the said fact has not been disclosed in the writ petition nor the said order has been challenged. According to him, the petitioner has also concealed material facts to this Court that against the dismissal of the S.C.C. Suit No. 8 of 2010 as well as S.C.C. Revision No. 24 of 2024, the petitioner had challenged both the orders before this Court in Matters Under Article 227 No. 372 of 2025 and the writ petition filed by the petitioner was dismissed on 16.01.2025 upholding the order of eviction. According to the respondent's counsel, the effort made by the judgment debtor is to only delay the execution proceedings.
6. I have heard the counsel for the parties and perused the material on record.
7. It is an admitted case between the parties that the original owner of the shop including house in question was one Bharosa alias Bharosi, who executed the sale deed in favour of the decree holder-respondent, Kamlesh Kumar on 19.11.2004. As the rent was not paid from 19.11.2004 to 30.11.2009, eviction proceeding was initiated against the petitioner-judgment debtor. The suit was decreed against the petitioner and revision filed by him was also dismissed. The order of the trial court was confirmed by this Court in Matters Under Article 227 No. 372 of 2025. As far as the litigation as to the cancellation of sale deed between the decree holder, Smt. Reshma and the legal heirs of Bharosa alias Bharosi is going on before the court below, the eviction proceedings have been confirmed by the order of the coordinate Bench of this Court. The only question which has to be looked into is as to whether the decree has been executed or not. Initially, partial compliance was done and an area of 3 feet X 11 feet was vacated and possession was handed over to the decree holder. It is on his application, the Paper No. 43C2 that the judgment debtor had filed objection, which has been turned down and the application has been allowed for executing the decree in entirety.
8. The court below had relied upon the earlier Amin report of 2005 filed in a suit pending before the judgment debtor and the decree holder, wherein, the area of the shop in dispute has been mentioned as 6 feet 9 inches X 11 feet. Once the eviction decree has been confirmed by this Court, the same needs to be executed and possession be handed over to the decree holder.
9. Considering the facts and circumstances of the case, I find that no interference is required in the order impugned and the court below has rightly proceeded to allow the application of the decree holder.
10. The writ petition fails and is hereby dismissed.
(Rohit Ranjan Agarwal,J.)
November 15, 2025
A. V. Singh
