Hanuman Sahai Sharma vs Babu Lal Sharma Andanr
2023 Latest Caselaw 4291 Raj/2

[2023:RJ-JP:14732]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                  S.B. Civil Writ Petition No. 5848/2016

Hanuman Sahai Sharma S/o Late Sh. Bhairuram @ Bhairu Lal
Sharma, Village Bhanpura Kalan, Tehsil Jamwaramgarh, District
Jaipur, At Present Plot No. 1246, Kisan Marg, Barket Nagar,
Jaipur
                                                                     ----Petitioner
                                     Versus
1.       Babu Lal Sharma S/o Sh. Ram Chandra, Village Bhanpura
         Kalan, Tehsil Jamwaramgarh, District Jaipur
2.       Suresh Kumar Sharma S/o Sh. Roop Narain Sharma,
         Village Bhanpura Kalan, Tehsil Jamwaramgarh, District
         Jaipur
                                                                  ----Respondents

For Petitioner(s)          :     Mr. B. B. Ojha
For Respondent(s)          :     Mr. Ramit Pareek



                HON'BLE MR. JUSTICE SAMEER JAIN

                                  Judgment

Reserved on                      08/05/2023
Pronounced on                    25/08/2023

1. The instant writ petition has been filed under Article 227 of

the Constitution of India against the order dated 20.04.2016

passed by Civil Judge (S.D.) and Chief Judicial Magistrate, Jaipur

in Case No. 13/2014 whereby an application under Order 21 Rule

29 of the Code of Civil Procedure, filed by the respondent-objector,

has been dismissed but while dismissing the said application, the

learned trial court allowed the framing of issues and taking the

evidence of the respondent-objector on record.

2. The relevant facts, necessary for the just and efficacious

adjudication of the instant writ petition, are as follows:

[2023:RJ-JP:14732] (2 of 8) [CW-5848/2016]

2/1. That the petitioner-decree holder filed a suit for eviction,

possession, recovery of rent, mesne profit and permanent

injunction against the respondent no.2 before the Civil Judge

(S.D.) and Chief Judicial Magistrate, Jaipur.

2/2. That despite service, respondent no.2-judgment debtor, did

not appear before the learned trial court and therefore, ex-parte

proceedings were initiated against him on 31.05.2011.

2/3. That after hearing the arguments, the learned trial court in

an ex-parte manner, decreed the suit in favour of the petitioner-

decree holder, vide judgement and decree dated 05.03.2013.

2/4. That subsequently, the petitioner filed an execution

application before the learned executing court and during the

execution proceedings, an objection application came to be filed

by the respondent no.1, wherein it was inter-alia alleged that the

execution application/decree obtained by the petitioner-decree

holder was based on incorrect and misconceived facts as neither

the petitioner-decree holder and nor the respondent no.2-

judgment debtor are concerned with the property in question.

Rather, it was alleged in the objection application that the said

property in question is in the possession of the respondent no.1-

objector, as the same belongs to him.

2/5. That the petitioner-decree holder filed their reply to the

aforementioned objection-application, whilst praying for the

dismissal of the same.

2/6. That meanwhile, respondent no.1-objector filed an

application before the learned trial court for adducing evidence in

the objection application and for framing issues therein on

[2023:RJ-JP:14732] (3 of 8) [CW-5848/2016]

27.11.2014. However, the said application came to be dismissed

vide order dated 24.12.2014.

2/7. That the respondent no.1 moved another application under

Order 21 Rule 29 of the Code of Civil Procedure for staying the

proceedings before the executing court.

2/8. That after hearing both the parties, the learned court below

dismissed the application so filed by the respondent no.1 under

Order 21 Rule 29 for staying the proceedings before the executing

court, vide impugned order dated 20.04.2016. However, while

dismissing the said application, the learned court below allowed

the framing of issues and taking of evidence on record in the

objection application filed by the respondent no.1.

2/9. That the petitioner-decree holder, being aggrieved with the

impugned order dated 20.04.2016, to the extent that it allowed

the framing of issues and taking the evidence of the respondent

no.1-objector on record, has preferred the instant writ petition.

3. Learned counsel for the petitioner has argued that the

impugned order dated 20.04.2016, to the extent of allowing for

framing of issues and taking evidence on record of the respondent

no.1-objector is illegal, erroneous and contrary to the evidence

and material available on record. In this regard, learned counsel

submitted that the learned executing court cannot exceed its

jurisdiction and allow the framing of issues and adducing evidence

on the objection application, especially when an application for

adducing evidence so put forth by the respondent no.1-objector

was dismissed vide order dated 24.12.2014 i.e. on the same facts,

the respondent no.1 had moved an application on 27.11.2014,

which was dismissed by the learned trial court vide order

[2023:RJ-JP:14732] (4 of 8) [CW-5848/2016]

24.12.2014. Thus, there is no occasion to decide/review the same

issue, which has already been adjudicated upon by the learned

trial court. Lastly, learned counsel for the petitioner-decree holder

argued that execution proceedings under Section 47 of the Code

of Civil Procedure are summary in nature and have to be given a

microscopic angle. Thus, in the facts and circumstances of the

case, the learned executing court erred in granting permission for

framing of the issues and adducing evidence. In support of his

arguments, learned counsel for the petitioner relied upon the

dictum of the Apex Court as enunciated in (2001) 6 SCC 534

titled as Dhurandhar Prasad Singh vs. Jai Prakash University

& Ors.

4. Per contra, learned counsel for the respondent no.1-objector

has submitted that the order passed by the learned executing

court dated 20.04.2016 is in accordance with the settled position

of law and thus, calls for no interference of this Court. In this

regard, learned counsel submitted that while previously dismissing

the application for adducing evidence in the objection application

so filed by the respondent no.1 on 24.12.2014, the learned trial

court failed to consider the fact that the petitioner-decree holder

had filed the civil suit as well as the execution application on

incorrect and misconceived facts as neither the petitioner-decree

holder and nor the respondent no.2-judgment debtor are

concerned with the property in question. It was averred that the

learned trial court failed to appreciate the fact that the property in

question is in the possession of respondent no.1. Furthermore, it

was further submitted that the respondent no.1-objector is the

owner of the property in question and the same had been given on

[2023:RJ-JP:14732] (5 of 8) [CW-5848/2016]

rent to one Sh. Dungarsi, wherein the latter was conducting the

business of running a 'Mishthan Bhandar' and Juice Centre.

Thereafter, the petitioner-decree holder, in collusion with the said

tenant of the respondent no.1, tried to usurp the property in

question, belonging to the respondent no.1-objector. In this

regard, it was submitted that the respondent no.1 had also filed a

Civil Suit No. 228/2009 for declaration and permanent injunction

against the petitioner-decree holder before the District and

Sessions Judge, Jaipur, which is pending before the Additional

District and Session Judge No.2, Jaipur, wherein a stay order is

presently operative. Despite being aware of the said pending

proceedings, the petitioner-decree did not implead the respondent

no.1 as a party before the court below and obtained the decree for

possession on misconceived and incorrect facts. Thus, the learned

trial court while dismissing the application for adducing evidence,

vide order dated 24.12.2014 committed a grave error in not

taking into consideration the aforementioned facts. Thus, while

passing the impugned order dated 20.04.2016, the learned

executing court, after analyzing the aforesaid facts, allowed for

the framing of issues and adducing evidence in the objection

application so preferred by the respondent no.1-objector. In this

regard, it was also submitted that while dealing with a writ

petition preferred under Article 227 of the Constitution, the Court

must limit its enquiry to the limited question of discerning whether

a perversity or illegality has crept in the impugned order, thereby,

warranting interference of the writ court. However, in the facts and

circumstances of the present case, the impugned order dated

[2023:RJ-JP:14732] (6 of 8) [CW-5848/2016]

20.04.2016 has been passed in accordance with law, as the same

is detailed, logical and well-reasoned.

5. Heard the arguments advanced by learned counsel for both

the sides, scanned the record of the writ petition and perused the

judgment(s) cited at Bar.

6. It is trite that there is limited scope of interference with a

well-reasoned order while exercising the jurisdiction under Article

227 of the Constitution of India. It is a well settled principle of law

that in the guise of exercising jurisdiction under Article 227 of the

Constitution of India, the High Court cannot convert itself into a

court of appeal. It is equally well settled, that the supervisory

jurisdiction extends to keeping the subordinate tribunals within

the limits of their authority and seeing that they obey the law. It

has been held that though the powers under Article 227 are wide,

they must be exercised sparingly and only to keep subordinate

courts and Tribunals within the bounds of their authority and not

to correct mere errors. Reliance in this respect can be placed on

Hon'ble Apex Court judgment of Mohd. Inam vs. Sanjay Kumar

Singhal and Ors. reported in (2020) 7 SCC 327.

7. Upon a perusal of the impugned order dated 20.04.2016, it

is observed that the learned court below, while allowing the

framing of issues and adducing evidence in the objection

application has duly taken into consideration the averments put

forth by the learned counsel for the respondent no.1-objector,

which were previously not considered while passing the order

dated 24.12.20 including the fact that the property in question, is

presently in possession of the respondent no.1-objector, who is

sought to be dispossessed by the decree so obtained by the

[2023:RJ-JP:14732] (7 of 8) [CW-5848/2016]

petitioner-decree holder. Moreover, while allowing for adducing

evidence, learned trial court also considered the allegation levelled

by the respondent no.1-objector qua the decree being obtained by

the petitioner-decree holder in collusion with the tenant of the

respondent no.1, who is the owner of the said property. Thus, in

the aforesaid facts and circumstances, the court below, vide

passing the impugned order dated 20.04.2016, took into

consideration the aforesaid facts, and allowed the respondent

no.1-objector to adduce evidence to prove the averments so made

by him.

8. In the opinion of this Court, the learned Trial Court has

passed a well-reasoned speaking order and after consideration of

material aspects, arrived at a logical conclusion. This Court is in

complete agreement with the reasoning adopted by the Court

below. There is no violation of principles of natural justice and no

palpable error has crept in the order of the learned trial court. The

order impugned does not cause any serious prejudice to the

petitioner, warranting interference under Article 227 of the

Constitution of India.

9. Therefore, considering the observations made herein-above,

and relying upon the judgment of this Court in S.B. Civil Writ

Petition No. 1965/2015 titled as Babu Lal Sharma vs.

Hanuman Sahai, this Court does not deem it fit to interfere with

the impugned order dated 20.04.2016.

10. Furthermore, considering the long drawn pendency of the

suit, this Court directs the leaned court below to proceed in Case

No. 13/2014 and dispose of the same expeditiously, preferably

[2023:RJ-JP:14732] (8 of 8) [CW-5848/2016]

within an upper limit of twelve months from the date of receipt of

copy of this order.

11. As a result, the present writ petition is dismissed. Pending

applications, if any, are also disposed of.

(SAMEER JAIN),J

Pooja /63

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