Delhi High Court
Bhawani Fher vs Vinod Kumar Sharma on 22 May, 2023
Neutral Citation Number 2023:DHC:3594
$~69
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.05.2023
+ CM(M) 865/2023
BHAWANI FHER ..... Petitioner
versus
VINOD KUMAR SHARMA ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Neerad Pandey, Advocate.
For the Respondent : None.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
CM APPL. 27342/2023 (for exemption)
1. Exemption is allowed, subject to all just exceptions.
2. The application stands disposed of.
CM(M) 865/2023 & CM APPL. 27341/2023 (for stay)
3. Petitioner challenges the order dated 12.05.2023, whereby the
learned First Appellate Court in RCA No. 22/2023 titled as "Bhawani
Fher vs. Vinod Kumar Sharma" had refused to pass any interim orders
on the application under Order 41 Rule 5 of the Code of Civil
Signature Not Verified
Digitally Signed
Signing Date:24.05.2023
12:10:33
Neutral Citation Number 2023:DHC:3594
Procedure, 1908 seeking stay of the execution proceedings.
4. Learned counsel appearing for the petitioner submits by referring
to the order dated 01.03.2023, whereby while issuing notice on the
appeal filed by the petitioner, the learned First Appellate Court did not
pass any orders of the ex parte ad interim relief or stay of the operation
of the judgment and decree dated 03.02.2023 on the ground that no
execution had been filed by then and, therefore, there arose no
requirement to grant any ex parte interim relief to the petitioner, who
was the appellant before the learned First Appellate Court.
5. Learned counsel brings the attention of this Court to the order
dated 28.03.2023 passed by the learned Executing Court in Execution
No. 408/2023, whereby the Executing Court had, on the mere statement
of the decree holder, that as per his information, the petitioner/ judgment
debtor had vacated and left the suit property and the Executing Court
had, without carrying out the requisite enquiry, directed that the
warrants of possession be issued in respect of the room situated on the
ground of the property bearing No. 1822-1827, 1137-B and 1150 (new)
and 336 (B) (Old), Chatta Madan Gopal, Maliwara, Chandni Chowk,
Delhi-110006.
6. Learned counsel submits that the First Appellate Court did not
grant any interim order on the basis that no execution was filed,
however, as per the order dated 28.03.2023, the Executing Court had
already passed orders granting warrants of possession.
7. Learned counsel submits that despite the petitioner's protest, the
bailiff had forcibly dispossessed the petitioner and the keys thereof have
been deposited with the learned Executing Court.
Signature Not Verified
Digitally Signed
Signing Date:24.05.2023
12:10:33
Neutral Citation Number 2023:DHC:3594
8. Petitioner submits that the objections under Order XXI Rule 99 of
the CPC, 1908 have also been filed by the petitioner before the
Executing Court, which are yet to be decided and even before such
consideration and decision in pursuance thereto, the dispossession of the
petitioner has occurred.
9. According to learned counsel, the dispossession in such facts of
the case is, illegal and contrary to the procedure known to law.
10. Learned counsel submits that the petitioner ought to be put back
in possession since the dispossession itself is irregular and illegal.
11. This Court has considered the submissions made by the learned
counsel for the petitioner, as also perused all the relevant orders. From
the submissions as also from the record, it appears that the petitioner has
dispossessed by virtue of the bailiff's action and the keys of such subject
suit property is already with the learned Executing Court.
12. The learned Executing Court is also in seisen of the objections
under Order XXI Rule 99 CPC, 1908 filed by the petitioner which are
yet to be disposed of.
13. It would suffice the interests of justice, in case the learned
Executing Court is directed to first take up the objections under Order
XXI Rule 99 of the CPC, 1908 filed by the petitioner and dispose of the
same in accordance with law before proceeding to handing over the keys
to the respondent under the execution proceedings.
14. Learned counsel also submits that the decree itself appears to be
ambiguous because the judgment debtor in the particular case is one
Bhawani Shankar Sharma, who is in possession of property No 1827
and the petitioner is in possession of property No. 1825 and it is
Signature Not Verified
Digitally Signed
Signing Date:24.05.2023
12:10:33
Neutral Citation Number 2023:DHC:3594
inexplicable as to how, the learned Trial Court has passed orders in
respect of property Nos. 1822-1827.
15. This issue needs to be also considered by the learned Executing
Court while deciding the objections of the petitioner.
16. The matter is stated to be listed before the learned Executing
Court on 25.05.2023. The learned Executing Court is directed to take up
the objections of the petitioner under Order XXI Rule 99 of the CPC,
1908 for consideration, if possible, on 25.05.2023 itself.
17. In view of the aforesaid, the petition is disposed of in the above
terms with no order as to costs.
18. Order Dasti under the signatures of Court Master.
TUSHAR RAO GEDELA, J.
MAY 22, 2023/nd
Signature Not Verified
Digitally Signed
Signing Date:24.05.2023
12:10:33
