JAMEELA Vs. CIVIL JUDGE (SENIOR DIVISION) RAMPUR

JUDGEMENT

(1.) The decree holders have filed this petition for quashing the order dated 18th February, 2011 passed in Execution Case No.1 of 2002 arising out of SCC Suit No.25 of 1995 (Mohd. Ismail Vs. Abdul Sattar). It transpires from the records of the writ petition that SCC Suit No.25 of 1995 was filed by Mohd. Ismail for ejectment of Abdul Sattar and for recovery of arrears of rent. The suit was contested by Abdul Sattar in which the relationship of landlord and tenant was denied and it was claimed that his wife is the co-sharer of the property. During the pendency of the suit, Abdul Sattar died and respondent nos.2 to 5 were substituted as heirs and legal representatives of Abdul Sattar. The suit was decreed by the Judge, Court of Small Causes on 27th February, 2002 against which a Revision was filed under Section 25 of the Provincial Small Cause Courts Act, 1887 which was also dismissed on 17th November, 2002. The tenants filed Writ Petition No.52774 of 2002 for assailing these orders passed by the Judge, Court of Small Causes and the Revisional Court, which petition was ultimately dismissed on 13th August, 2010.

(2.) Execution Case No.1 of 2002 was filed by the decree holders as the judgment debtors did not comply with the decree. During the pendency of the case, the decree holder died and respondent no.6-Mohd. Israil was substituted as his heir and legal representative. The Execution Case proceeded and a writ for possession was also issued on 21st August, 2010. An application was then filed by the judgment debtors for staying the proceedings of the Execution Case since an order of status quo had been passed by the High Court in Second Appeal No.607 of 2009 in which the issue relating to the share of the mother of the judgment debtors regarding the property was also involved and the Executing Court stayed further proceedings by the order dated 18th February, 2011. It is this order that has been assailed in this petition.

(3.) Sri M.A. Qadeer, learned Senior Counsel appearing for the petitioners has submitted that this issue relating to mother being a co-sharer of the property was raised by the tenants in SCC Suit as also in the Revision. The High Court in its judgment and order dated 13th August, 2010 in the writ petition filed by the tenants for assailing these two orders, had also dealt with the issue relating to the share of Saira and, therefore, mere pendency of the Second Appeal and the order of status quo passed by the High Court in the Second Appeal arising out of the suit, should not have been taken into consideration by the Executing Court for staying further proceedings in the Execution Case. He has, in this connection, placed before the Court the judgment and order dated 13th August, 2010 of the High Court passed in Writ Petition No.52774 of 2003 which is quoted below: