NISAR AHMAD Vs. V ADDL DISTRICT JUDGE AZAMGARH

JUDGEMENT

(1.) This writ petition is directed against the orders of Vth Addl. District Judge, Azamgarh dated 25-9-89 passed in Civil Revision No. 27 of 1988 by which the order dated 5-2-1988 passed by Munsif rejecting the application (88C-2) in Execution Case No. 22 of 1974 Sabira Bibi v. Abdul Qavi had been affirmed. The order dated 2-12-1983 passed by Munsif, Gohana (Azamgarh) is also sought to be quashed. Further prayer is to issue a writ of mandamus commanding the respondent No. 2 Munsif to dispose of application (67C-2) dated 19-1-75 and recall the order dated 20-12-75.

(2.) The brief facts of the case would be necessary for properly appreciating the controversy in the petition. The Original Suit No. 471 of 1967 was filed by Smt. Sabira Bibi for recovery of possession over a shop room and also for recovery of damages from Abdul Qavi. The plaintiff Smt. Sabira Bibi has purchased the property in question by a sale deed dated 15-9-60 executed by one Mohd. Ali. The original suit was decreed in favour of the plaintiff and a Second Appeal No. 1858 of 1975 was filed before the Court. Initially on interim stay order staying the Execution of decree dated 31-10-75 was passed but it was later vacated by this Court itself. The case for execution of the decree had already been filed as Execution Case No. 22 of 1974. The execution of the decree proceeded again after the interim stay order in Second Appeal was vacated. A parawana Dakhal warrant for delivery of possession was issued by the Execution Court but the same was returned without executing the same. There was a report that the boundaries of the premises described in the parawana Dakhal tas not tallying at spot.

(3.) Again the execution proceeded and the Execution Court issued a warrant for possession in October 1975. When the Advocate Commissioner tried to execute the warrant at the spot, one Sri Abdul Wali, father of the present petitioners resisted the execution of the decree for possession. The ground for resistance was that the decree which was being executed was not passed against the said Abdul Wali. He claimed to be in possession in his own rights independently and he pleaded that the decree in question could not be executed against him. Thus, the decree was not executed by the Advocate Commissioner. The Commissioner in fact had reported on 9-10-75 that on account of huge gathering, the police could not control the situation and it could not execute the decree. The Executing Court passed orders for providing police aid for execution.