FARUQ ALI SHAH Vs. GHANSHIAM DASS

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution by Faruq Ali Shah, judgment-debtor for quashing the order dated 7-3-1960 of the Additional District Judge, Meerut, Annexure 'C' to the affidavit, whereby the revision preferred against the order dated 23-5-1959 of the Judge, Small Cause Court, Meerut, Annexure 'B' to the affidavit, was allowed and the objection dated 25-10-1958 Annexure 'A' to the affidavit, against the maintainability of the execution application was dismissed. A request is also made for the issue of an order prohibiting the Judge, Small Cause. Court, Meerut, respondent No. 3, from proceeding with the execution application.

(2.) The facts of the case are simple and are no longer in dispute. Ghanshiam Dass, respondent No. 1, obtained an ex parte decree on 28-9-1948 in S. C. C. Suit No. 998 of 1948. The first execution application No. 884 of 1951 was moved on 27-9-1951, Meanwhile on 14-6-1950, notification No. 2339-1/CW-302 (22)-46 under Section 15 of U. P. Court of Wards Act, 1912, was published whereby the Court of Wards took superintendence of the property of the applicant. The case of respondent No, 1 is that he was not aware of the notification, but as the notification was published in the U. P. Gazette, he shall be deemed to he aware of the notification. The execution application was not in accordance with Section 55 of the U. P. Court of Wards Act as the execution of the decree was sought for against the applicant by his arrest and detention in civil prison. The execution application was dismissed for want of prosecution on 15-11-1951. The respondent moved the second execution application during the year 1954 wherein the applicant filed an objection dated 18-10-1954 (certified copy of the objection has been annexed to the counter-affidavit) pleading that in view of Section 18 of the U. P. Court of Wards Act the execution could not proceed. The bar of Section 55 was not then raised. From the material and facts brought to the notice of this Court after the conclusion of the argument it appears that the objection was dismissed in default, but before the expiry of the period of limitation for setting aside the order of dismissal or for preferring an appeal against the order of rejection of the objection, the second execution application was dismissed in default.

(3.) The fourth exertion application was moved on 1-9-1958 which was registered as Execution Case No. 826 of 1958. As no particulars have been furnished by respondent No. 1 in spite of the applicants' plea that he had no knowledge of the execution application it can be assumed for purposes of the present proceeding that the third execution application was also dismissed for want of prosecution without notice to the applicant.