Allahabad High Court
Mangaru And 8 Others vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 26 September, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:60269
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
MATTERS UNDER ARTICLE 227 No. - 5876 of 2025
Mangaru And 8 Others
.....Petitioner(s)
Versus
State Of U.P. Thru. Prin. Secy. Deptt. Of Law And Justice Lko. And 2 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Mohd.Yasin
Counsel for Respondent(s)
:
C.S.C., Ajay Kumar Verma, Anubhav Awasthi
Court No. - 7
HON'BLE JASPREET SINGH, J.
1. Heard Shri Mohd. Yasin, learned counsel for the petitioners. Shri Anubhav Awasthi, learned counsel appearing on caveat on behalf of the private-respondent No.2. Shri Manoj Kumar Mishra, learned counsel has filed his Vakalatnama on behalf of the respondent No.2 and 3, the same is taken on record.
2. Under challenge is the order dated 03.05.2025 passed by the Executing Court indicating that it does not propose to defer the execution proceedings merely on the ground that there is a second appeal pending before this High Court especially when there is no interim/stay order.
3. This order was assailed in a revision under Section 115 CPC and the District Judge, Ambedkar Nagar by means of its order dated 28.08.2025 dismissed the revision indicating that the order of the trial Court was merely an interlocutory in nature and as such no revision lies against an interlocutory order.
4. Shri Yasin, learned counsel for the petitioners has vehemently urged that initially a suit filed by the plaintiffs-respondents was dismissed against which the first appeal was filed which came to be allowed. This order was assailed by the present petitioners by filing a second appeal bearing No.172 of 2018 before this High Court.
5. It is not disputed that the said second appeal has not yet been admitted. In the meantime, as the proceedings were progressing before the Executing Court, another application was moved before the Executing Court seeking stay of the proceedings, however, the same did not find favour and against the same another revision was preferred and thereafter the matter came up once again before this High Court in a Writ Petition No.4422 of 2024 (A-227) at the behest of the present private-respondents and the petition was connected with the second appeal preferred by the present petitioners.
6. It is submitted that once the second appeal and the petition preferred by the present private-respondents have been connected and pending adjudication before this Court, it was not open for the Executing Court to have proceeded rather it should have stayed its hands till such time the second appeal and the connected petition under Article 227 of the Constitution of India was finally decided.
7. It is further urged that the Executing Court did not notice the fact that the matter is under active consideration of the High Court and in such circumstances taking recourse under Order XLI Rule 5 CPC as well as Order XXI Rules 21 and 29 CPC, the Executing Court should have stayed the proceedings, however, but by passing the order dated 03.05.2025, the Executing Court had committed an error. Since, the error of the Executing Court was jurisdictional in nature, hence, the revision preferred by the petitioners was absolutely maintainable and the revisional Court has also erred in holding that the revision against an interlocutory order was not maintainable.
8. It is in the aforesaid circumstances, it is prayed that unless an interim protection is granted, the petitioners would suffer irreparable injury as the Executing Court proposes to proceed further while executing a decree under Order XXI Rule 32 CPC.
9. Shri Mishra, learned counsel for the private-respondents has urged that neither the provision as relied upon by the learned counsel for the petitioners are applicable in the given facts and circumstances of the case coupled with the fact that there is no adjudication of rights either by the Executing Court which may entail any consequence, hence, the revision which has been dismissed as against an interlocutory order cannot be said to be bad in law, hence, the instant petition also deserves to be dismissed.
10. The Court has heard learned counsel for the parties and also perused the material on record.
11. Insofar as the certain foundational facts for ascertaining the veracity of the petition if seen, it is not disputed that a judgment and decree is operating against the petitioners and though a second appeal is pending before this High Court since 2018 however, the same is not yet admitted nor there is an interim order therein.
12. In the given backdrop, if the provisions of Order XLI Rule 5 CPC is seen, it apparently has no applicability inasmuch as if at all the said provision could be invoked then it should have been at the instance of the petitioners before the second appellate Court and admittedly there is no application moved recently in point of time except for the one which is moved at the time when the said second appeal was filed in the year 2018. As informed by the learned counsel for the petitioners, moving application for listing alone does not come to the aid to the petitioners.
13. Reliance has been placed on Order XXI Rules 26 and 29 CPC by the learned counsel for the petitioners, however, the said provision has no role to play inasmuch as the said provision operate in a different sphere and different circumstances altogether.
14. In the aforesaid backdrop when the suit was decreed by the first Appellate Court vide its judgment and decree dated 29.03.2018 against which the second appeal is pending if at all the petitioners had any grievance, it should have moved the proper forum especially where the second appeal is pending.
15. There is nothing on record to indicate that any application was filed before the second appellate Court. This is being noticed for the reason that the petitioners have enclosed several orders passed in Second Appeal No.172/2018 as Annexure No.9 cumulatively and a perusal of the same, it only indicates that the last order dated 19.05.2023 only provided for taking an application for dismissal on record.
16. In the aforesaid circumstances, where the Executing Court has declined to stay the proceedings and no further orders have yet been passed, accordingly, the order dated 03.05.2025 is nothing but a routine procedural order which does not impact the rights of any of the parties and in this view the revision against the said order being purely interlocutory in nature cannot be said to be bad. Consequently, this Court does not find that there is any error in the order dated 03.05.2025 or 28.08.2025, hence, the petition being devoid of merit is dismissed. However, mere dismissal of this petition may not be construed as an expression of opinion on merits of the controversy as the same is already seized by the second Appellate Court and needless to say shall be considered on its own merits.
(Jaspreet Singh,J.)
September 26, 2025
Rakesh/-
