Rajasthan High Court

Sayeed Ahmed And Ors vs Addi District Judge And Anr on 8 November, 2021

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 5798/2010
1.     Sayeed Ahmed S/o Late Shri Gause Mohammed
2.     Saiyad Gulam Moinuddin Since Deceased Through His
       Legal Representatives
3.     Saiyad Mahmood Ahmed S/o Late Shri Gause Mohammed
4.     Mariyam Bibi D/o Late Shri Gause Mohammed
5.     Ghosia Bibi D/o Late Shri Gause Mohammed, All Are
       Resident Of Langar Khana Gali, 371, Gause Mansion,
       Dargah Bazar, Ajmer
6.     Rabia Bibi D/o Late Shri Gause Mohammed W/o Shri
       Gulam Ahmed, Imam Bara, Rangeela House, Dargah,
       Ajmer
7.     Faiz Bibi D/o Late Shri Gause Mohammed W/o Shri
       Zaheer Uddan, Lambi Gali, Imam Bara, Dargah, Ajmer
8.     Amna Bibi      D/o     Late      Shri     Gause          Mohammed Since
       Deceased Though Legal Representatives
                                                                   ----Petitioners
                                   Versus
1.     Additional District Judge No. 1, Ajmer
2.     Shri Suresh Chand Sharma S/o Shri Shiv Lal Sharma,
       Naya Bazar, Ajmer
                                                                 ----Respondents

For Petitioner(s)        :     Mr. Gaurav Jain
                               Mr. Arvind Gupta
For Respondent(s)        :     Mr. R.K. Mathur, Senior Counsel
                               assisted by Mr. Aditya Mathur



          HON'BLE MR. JUSTICE INDERJEET SINGH

                                    Order

08/11/2021

Instant writ petition has been filed by the petitioners-

objectors against the order dated 13.04.2010 passed by the

learned Trial Court whereby the application submitted by the

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petitioners-objectors under Section 47 read with Order 21 Rule 23

and Section 151 CPC was dismissed.

Brief facts of the case are that the respondent No.2-decree-

holder purchased the disputed premises on 04.03.1971 from one

Gause Mohammad by registered sale deed and the decree-holder

gave the disputed premises on rent to Gause Mohammad and

Swaroop Singh. The suit for rent and eviction was filed by the

respondent No.2-decree-holder against Gause Mohammad which

was decreed on 27.08.1977 for Rs.10,000/- against which Gause

Mohammad filed the Civil First Appeal No.01/1978 which was

decided by this Court vide order dated 14.05.1987 and on

objections being submitted by the respondent-decree-holder, the

decree of eviction was also granted by this Court vide judgment

and decree dated 14.05.1987. Thereafter, the respondent-decree-

holder as many as four times filed the execution application and

when the fourth execution application was pending before the

learned Trial Court, the petitioners who are legal representatives

of Gause Mohammad filed objections under Section 47 read with

Order 21 Rule 23 and Section 151 CPC which were dismissed vide

order dated 13.04.2010. Hence, this writ petition filed by the

petitioners challenging the order dated 13.04.2010.

Counsel for the petitioners submits that Swaroop Singh

against whom the decree was granted by this Court has not been

impleaded as party before the learned Trial Court in execution

proceedings. Counsel further submits that the disputed premises

has been further sold by the petitioner to Smt. Mustafa Hussaini

and Abdul Rasid, however, both of them were not made party in

the proceedings before the learned Trial Court. Counsel further

submits that another civil suit with regard to cancellation of sale

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deed as well as redemption of mortgage is also pending before the

Civil Court between the parties. Counsel further submits that since

the purchasers were not made party by the respondent-decree-

holder, the learned Trial Court has committed serious illegality and

prayed for quashing of the order dated 13.04.2020.

Learned Senior Counsel appearing on behalf of the

respondents submits that once the decree of eviction has been

granted by this Court in S.B. Civil First Appeal No.01/1978 vide

judgment and decree dated 14.05.1987, the objections taken by

the petitioners-objectors have no legal force. Counsel further

submits that grandson of Swaroop Singh has also filed an affidavit

before this Court stating therein that he has no relation with the

disputed premises.

In support of his contention, learned senior counsel relied

upon a judgment passed by the Hon'ble Supreme Court in the

matter of BRAKEWEL AUTOMOTIVE COMPONENTS (INDIA)

PRIVATE LIMITED vs. P.R. SELVAM ALAGAPPAN reported in (2017)

5 SCC 371 where in para No. 24, it has been held as under:-

"24. Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected."

(4 of 6) [CW-5798/2010]

He further relied upon another judgment of the Hon'ble

Supreme Court in the matter of DHURANDHAR PRASAD SINGH vs.

JAI PRAKASH UNIVERSITY AND OTHERS reported in (2001) 6 SCC

534, where in paras No.23 & 24 it has been held as under:-

"23. Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers of Court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. A first appellate Court is not only entitled but obliged under law to go into the questions of facts as well like trial court apart from questions of law. Powers of second appellate Court under different statutes like Section 100 of the Code, as it stood before its amendment by Central Act 104 of 1976 with effect from 1.2.1977, could be exercised only on questions of law. Powers under statutes which are akin to Section 100 of the Code, as amended and substituted by the aforesaid Central Act, have been further narrowed down as now in such an appeal only substantial question of law can be considered. The powers of this Court under Article 136 of the Constitution of India, should not be exercised simply because substantial question of law arises in a case, but there is further requirement that such question must be of general public importance and it requires decision of this Court. Powers of revision under Section 115 of the Code cannot be exercised merely because the order suffers from legal infirmity or substantial question of law arises, but such an error must suffer with the vice of error of jurisdiction. Of course, the revisional powers exercisable under the Code of Criminal Procedure and likewise in similar statutes stand on entirely different footing and much wider as there the court can go into correctness, legality or propriety of the order and regularity of proceeding of inferior court. It does not mean that in each and every case the revisional court is obliged to consider question of facts as well like a first appellate Court, but the court has discretion to consider the same in appropriate cases whenever it is found expedient and not in each and every case.

                                         (5 of 6)               [CW-5798/2010]


       Discretion,     undoubtedly,     means     judicial

discretion and not whim, caprice or fancy of a Judge. Powers of review cannot be invoked unless it is shown that there is error apparent on the face of the record in the order sought to be reviewed.

24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against the governing body of the College which was defendant without seeking leave of the Court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it . Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law."

Heard counsel for the parties and perused the record.

This writ petition filed by the petitioners deserves to be

dismissed for the reasons; firstly, the respondent-decree-holder is

having decree of eviction in his favour passed by this Court vide

judgment and decree dated 14.05.1987 in S.B. Civil First Appeal

No.01/1978; secondly, non-impeading of subsequent purchasers

as party in the execution proceedings will not come in the way of

execution of decree by the learned Trial Court, as the subsequent

purchasers have not submitted any objections before the learned

Court below and lastly in the facts and circumstances of the

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present case, I am not inclined to exercise the jurisdiction of this

Court under Article 226 and 227 of the Constitution of India.