MOHD. SHAFEEQ Vs. MIRZA MOHMOOD HUSSAIN AND OTHERS

JUDGEMENT

(1.) By means of this writ petition, the petitioner has sought for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 10.07.2012, passed by District Judge, Lucknow, copy whereof is annexed as Annexure-'7' to the writ petition, and further a writ in the nature of mandamus commanding the respondent no.3 (District Judge, Lucknow) to decide SCC Revision No.44 of 2012, on merits, after considering the relevant evidence.

(2.) Brief facts of the case, as transcribed in the writ petition are that the petitioner filed application under Order 21, Rule 97 , read with Sec. 151 of the Code of Civil Procedure before the Court of Judge, Small Causes for adjudication of his legal rights, which was registered as misc. case no.22-C of 2012. On 17.05.2012, learned counsel for opposite parties were served with a copy of application, which was taken on record as paper no.C-4. On 18.05.2012, the Presiding Officer was on leave and the case was adjourned to 19.05.2012. Learned trial Court was pleased to recall its order dated 10.05.2012. The petitioner then preferred S.C.C. Revision no.44 of 2012 before the District Judge, Lucknow, which was dismissed on 10.07.2012 as barred by principles of res-judicata. The opposite parties have filed execution application, which was pending as execution case no.21 of 1999 for execution of ex-parte decree and later on the same has been dismissed on 30.05.2000 against which he preferred a revision, which was also dismissed.

(3.) Being aggrieved by the order passed by the revisional Court, the petitioner preferred writ petition, being writ petition no.59 (R/C) of 2004, before this Court, in which it was held that application under Sec. 151 of the Code of Civil Procedure can be converted into an application under Order 21, Rule 97 of the Code of Civil Procedure and there was no decision on merits. It is contended by learned counsel for the petitioner that the petitioner is legally in possession and paying house tax, water tax and electricity bills and has got licence from Food Department. It is further contended that a second appeal no.107 of 2003 is also pending before this Court. In case no.20 of 2000, which was decided on 15.02.2001, the Additional City Magistrate (II), Lucknow has found that one Pratap Narayan is running a shop, but decree holder has obtained ex-parte decree by playing fraud on the Court against the petitioner. The petitioner contended that since the ex-parte decree is in-executable, therefore, writ petition is being filed.