Allahabad High Court
Satyendra Mishra vs Gaya Prasad Singh Alias Hari Nath Singh ... on 28 October, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:188491
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 12806 of 2025
Satyendra Mishra
.....Petitioner(s)
Versus
Gaya Prasad Singh Alias Hari Nath Singh (Since Deceased) And 10 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Mohd Raghib Ali, Sameer Srivastava
Counsel for Respondent(s)
:
Neeraj Kumar Srivastava
Court No. - 36
HON'BLE ROHIT RANJAN AGARWAL, J.
1. Petitioner before this Court claims to be a tenant of the shop let out by the plaintiff respondents in the year 1983. The shop in question was initially let out to one Param Hans Mishra, grandfather of petitioner, on 16.10.1983. A suit for arrears of rent and eviction was filed by the landlord in the year 2008 which was registered as SCC Suit No. 12 of 2008. The said suit was decreed ex-parte on 19.8.2008. An application under Order IX Rule 13 CPC was moved by the father of petitioner on 2.7.2015. The said application was rejected on 18.3.2016, against which late Surya Narayan Mishra, father of petitioner, filed a writ petition being Matters Under Article 227 No. 4746 of 2016 before this Court, which was dismissed by order dated 11.8.2016 and following order was passed;
"Heard Sri Rajeev Kumar Srivastava, learned counsel for the petitioner and Sri K.P.S. Yadav for respondents no. 2, 3 and 4.
SCC Suit No. 12 of 2008 (Gaya Prasad Singh @ Harinath Singh and others vs. Smt. Surajmani and others) was decreed on 06.08.2011.
The petitioner on 02.07.2015 applied for setting aside the aforesaid decree alleging it to be an ex-parte by filing an application under Order IX Rule 13 CPC along with an application for condonation of delay in its filing.
The application of the petitioner to condone to delay in filing application under Order IX Rule 13 CPC has been rejected by the order dated 18.03.2016.
The above order has been impugned by the petitioner by filing this petition under Article 227 of the Constitution of India.
The impugned order has been passed by Additional District Judge exercising powers of Small Causes Courts as such the order is revisable under Section 25 of the Provincial Small Causes Courts Act, 1887 by the High Court.
Notwithstanding the above alternative remedy, as the revisional power under Section 25 of the above Act and supervisory power under Section 227 of the Constitution of India are analogous and are exercisable by this Court, I have heard counsel for the parties on the merits of the petition.
The submission of learned counsel for the petitioner is that there was hardly a small delay in filing the application under Order IX Rule 13 CPC from the date of the knowledge and as such the court below is not justifying in rejecting the same.
A bare perusal of the impugned order reveals that the aforesaid SCC Suit was decreed on 06.08.2011 after it was contested by the son of the petitioner Alok Kumar Mishra, who had put in appearance through Sri Mangala Prasad Pathak, Advocate.
The aforesaid Alok Kumar Mishra has even challenged the aforesaid judgement and decree on merits by filing a revision before the High Court which is pending.
This apart, there is another SCC Suit No. 20 of 2008 between the parties in respect of one adjoining shop. In the said case, the petitioner and his son Alok Kumar Mishra had put in appearance and filed vakalatnama through the same counsel Mangala Prasad Pathak.
In view of the aforesaid facts and circumstances, the court below held that it is next to impossible to believe that the petitioner had no knowledge of the filing of the present suit and the decree passed therein when the petitioner's son contested the suit and both of them together are contesting the other suit jointly through the same advocate. Thus, the story that the petitioner acquired knowledge of the ex-parte decree on 19.04.2015 inspected the record on 25.05.2015 and thereafter on 02.07.2015 filed an application under Order IX Rule 13 CPC is concocted and not acceptable.
In view of the aforesaid facts and circumstances of the case, as the decree alleged to have been passed ex-parte is dated 06.08.2011 and application under Order IX Rule 13 CPC was filed on 02.07.2015 and the petitioner has been attributed knowledge of the proceedings of the suit and the decree from the very inception the delay is not small but of about four years and such the court below has rightly rejected the application under Section 5 of the Limitation Act filed for condoning the delay.
The facts of the case speaks much about the conduct and manner in which the petitioner had allowed the aforesaid suit to be decreed against him ex-parte after getting it contested by son itself. Accordingly, the petitioner is not entitle to any discretionary relief in the matter of condonation of delay either in the court below or by this Court.
The petition has no merit and is dismissed."
2. It appears that the brother of petitioner Alok Kumar Mishra filed Civil Revision No. 416 of 2011 before this Court under Section 25 of the Provincial Small Causes Courts Act, 1887 assailing the judgment dated 6.8.2011 by which he was denied for filing evidence before the court below. The said revision was dismissed on 16.9.2016 with a cost of Rs. 25000/- and following order was passed;
"1. Heard learned counsel for parties and perused the record.
2. This revision under Section 25 of Provincial Slam Causes Courts Act has arisen from judgment and decree dated 6.8.2011 passed by Additional District Judge, Court No. 10, Varanasi in SCC suit No. 12 of 2008 (Gaya Prasad Singh & others vs. Smt. Surajmani & others) under Order XVII Rule 3 CPC.
3. Since defendant-revisionist did not adduce any evidence hence court proceeded to hear matter on the next date and has decided suit. Suit has been decreed directing defendants to vacate the house in dispute within 60 days with arrears of rent and damages.
4. It is contended that on 5.8.2011, revisionist met with an accident and could not lead evidence. Hence judgment and decree dated 6.8.2011 passed under Order XVII Rule 3 CPC is ex-parte. Hence entire proceedings are illegal and liable to be set aside.
5. However, order sheet shows that for evidence of defendant- revisionist various dates were fixed but he did not cooperate inasmuchas on 4.3.2011 defendant-revisionist and his counsel did not attend Court and it was adjourned to 25.3.2011. On the next date revisionist again did not attend. On 18.4.2011 defendant's counsel sought adjournment. On 6.7.2011 again case was called. Neither counsel nor defendant appeared and subsequently, case was adjourned. Again case was adjourned with consent of revisionist. In the circumstances, Court below had proceeded to decide under Order XVII Rule 3 CPC.
6. It is contended that defendant-revisionist sustained serious injuries in the accident in 2009 but in this regard medical certificate(Annexure 7 to the revision) shows that it is a certificate of Homeopathic clinic which does not indicate that any serious injury was sustained by defendant-revisionist. Even alleged certificate is dated 8.9.2011 though suit was decided on 6.8.2011. No other point was argued.
7. In these circumstances, looking to the history of the case, I find that order cannot be said erroneous or having passed in violation of any provision. I do not find any error apparent in the order passed by the court below.
8. Revision is dismissed with cost of Rs.25,000/-.
9. Certify this judgment to the lower court immediately."
3. It appears that Alok Kumar Mishra had filed an application 73-C alongwith an affidavit in Execution Case No. 1 of 2012 initiated by the landlord respondents for getting the decree executed. Application 73-C was allowed on 5.9.2022 by the court below on the ground that as objections under Section 47 CPC are pending, the execution is not to proceed. Present petition arises out of an application, moved by the present petitioner Satyendra Mishra, the other son of late Surya Narayan Mishra, under Order IX Rule 13 CPC for recalling the ex-parte judgment of the court below of the year 2011, after death of his father in the year 2022. The said application has been rejected by the court below by the order impugned dated 21.8.2025. Hence, present writ petition.
4. Learned counsel for petitioner submits that the firm Hans & Sons is being run by petitioner, who is sole proprietor, and after the death of his father he is looking after the business. He contends that he was not aware of the ex-parte judgment passed in the year 2011 and after coming to know about the said judgment in the year 2022 he moved the application under Order IX Rule 13 CPC which needs to be allowed.
5. Ms. Anjum Haq, Advocate, holding brief of Sri Neeraj Kumar Srivastava, learned counsel for landlord/respondent no. 1/1, submits that application under Order IX Rule 13 CPC was initially filed by father of petitioner late Surya Narayan Mishra which was dismissed by this Court way back in the year 2016. She further contends that to drag the execution case different applications have been filed by late Surya Narayan Mishra and his sons at different point of time. The present application under Order IX Rule 13 CPC has been moved by other son of late Surya Narayan Mishra to delay the execution proceeding. She further contends that the decree of the year 2011 could not be executed for the last 14 years on the basis of different applications being filed by father and sons at different point of time.
6. I have heard respective counsel for the parties and perused the material on record.
7. It is an admitted case that grandfather of petitioner was granted tenancy of the shop in question way back in the year 1983 which continued till the year 2008 and when the default was committed in payment of rent SCC Suit No. 12 of 2008 was preferred by the landlord for eviction and arrears of rent which was decreed on 6.8.2011. Execution proceedings were initiated in the year 2012. An effort was made by late Surya Narayan Mishra to delay the execution proceedings by filing application under Order IX Rule 13 CPC. The said application was dismissed by the trial court which had led to the filing of writ petition under Article 227 of Constitution of India before this Court and coordinate Bench of this Court way back in the year 2016 had repelled the argument raised by father of petitioner and dismissed the writ petition upholding the order rejecting application under order IX Rule 13 CPC.
8. Another effort was made by the brother of petitioner Alok Kumar Mishra by filing civil revision before this Court which was also dismissed with cost of Rs. 25000/-. This is third attempt by family members of original tenant Prama Hans Mishra and Surya Narayan Mishra for stalling the execution proceedings by filing different applications at different point of time. The present application under Order IX Rule 13 CPC has been moved in the year 2022. The court below had rightly repelled the arguments raised by the tenant and had dismissed the same. This Court finds that the trial court had stayed the execution proceedings on 5.9.2022 on an application moved by the brother of petitioner.
9. Recently, the Apex Court in case of Periyammal vs. Rajamani, 2025 SCC OnLine SC 507 has held that the decree should be executed as expeditiously as possible and a constant monitoring is now being done by the Apex Court looking to huge number of execution cases pending before the different courts. This Court after hearing learned counsel for parties finds that no interference is required in the order impugned.
10. Writ petition fails and same is hereby dismissed.
11. The order dated 5.9.2022 passed by Additional District Judge, Court No. 10, Varanasi allowing the application 73-C, staying the execution proceedings is also set aside. The executing court is hereby directed to proceed with the execution case No. 1 of 2012 keeping in mind the recent judgment of Apex Court rendered in case of Periyammal (Supra) and conclude the execution case positively within a period of two months from the date of receipt of a certified copy of this order.
(Rohit Ranjan Agarwal,J.)
October 28, 2025
Shekhar
