NARESH CHAND AGRAWAL Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) Heard Sri B.P. Singh, Senior Advocate appearing with Sri M.M.D. Agrawal, Advocate for the petitioner, By means of the present writ petition, the petitioner is challenging the order dated 12.8.2010 passed by the Civil Judge (Junior Division), Jhansi in Execution Case No. 3 of 2009 by which he has stayed the execution proceeding. The petitioner is landlord of the premises in dispute. It appears that a Suit No. 24 of 1980 was filed for the eviction, which has been decided on the basis of the compromise entered into between the parties and the rent has been enhanced. When the rent has not been paid by the respondent-tenant, another Suit No. 361 of 1993 was filed. The suit was decreed vide order dated 7.9.1996 against which the respondent filed an appeal, which has been partly allowed vide order dated 27.1.1998 against which the petitioner filed Second Appeal No. 618 of 1998 before this Court, who has been allowed on 25.8.2008 against which the respondent filed S.L.P., which has been dismissed on 27.1.2009 and the ejectment of the respondent has been upheld. For the execution of the aforesaid decree, an Execution Application No. 3 of 2009 has been filed.

(2.) It appears that the respondent filed a suit being Suit No. 79 of 2010 for declaring the decree null and void. The said suit has been dismissed. It has been held by the Trial Court that it is barred by res judicata. Against the said order, the respondent filed revision, which has been allowed against which the petitioner filed the writ petition, which has been allowed and the revisional order has been set aside against which the respondent filed S.L.P., which has been dismissed. According to the petitioner, in all respect, the order for the ejectment has become final. It appears that the respondent has filed one more Suit No. 1 of 2009, which has been subsequently renumbered as Suit No. 2 of 2010 in the Revenue Court claiming the tenancy right over the property in dispute. The Trial Court by the impugned order stayed the execution proceeding on the ground that Suit No. 2 of 2010 is pending. Against the said order, the petitioner filed revision being Revision No. 180 of 2010, which is pending. The notice has been issued to the respondent. The respondent has also put his appearance and now the next date fixed is 25.4.2011.

(3.) Learned Counsel for the petitioner submitted that the order of the Trial Court dated 12.8.2010 is patently illegal and abuse of process of the Court. He submitted that once ejectment of the respondent has been upheld by Apex Court and in a subsequent Suit No. 79 of 2010 it has been held that the suit is barred by res judicata in view of the order passed in Suit No. 361 of 1993. The Execution Court has no jurisdiction to stay the execution proceeding. The respondent is delaying the execution on one pretext or other.