LAL DEVENDRA PRATAP SINGH Vs. BILKIS MASOOD

JUDGEMENT

(1.) Impugned herein the order dated 2.4.2004 passed by District Judge, Azamgarh thereby dismissing the revision summarily at admission stage. The order impugned herein stemmed from order dated 29.3.2004 passed by Addl. Civil Judge, Azamgarh in Execution Case No. 59 of 2003 whereby applications 341 Ga-2, 350 Ga-2 and 352 Ga-2 and objections preferred were disallowed.

(2.) Few facts as are imperative to shed light on he; controversy involved in this petition, may be recapitulated. The dispute revolves rovind property known as Hafiz Manzil situated in village Narauli Tappa, Harbansh School, Pargana Nizambad, Tahsil Sadar, District Azamgarh. The property originally belonged to Dr. Hafiz Ullah, a retired civil surgeon who expired in the year 1948 and was survived by plaintiffs and proforma defendants 0 to 15 arrayed In the plaint. In the wake of his death, the property was entailed upon plaintiffs and proforma defendants and out of them proforma defendants 9 to 15 and Anis Ahmad, Rais Ahmad and Hamlra Bibi migrated to Pakistan. The share of the migrated persons in the property being 35/128th part as computed under the Mohammedan Law, was declared evacuee property under the Administration of Evacuee Property Act which came to be acquired by the Central Government. Since shares of evacuee and non- evacuee remained conjoint, ultimately final order;:, were passed on 14.3.1956 by the competent officer on separation of shares and on 15.7.1959 the plaintiffs were communicated with to part with the management of the portion which had been demarcated as evacuee property. In the ultimate analysis the evacuee property was sold off through sale certificate dated 14.8.1964. It would transpire that plaintiffs felt aggrieved by the sale certificate as It subsequently trickled to their knowledge that a larger area had been acquired as evacuee property, and instituted a suit being suit No. 55 of 1965, alleging that the sale certificate was collusive and prayed for relief that the sale certificate was declared null and void. The suit for possession eventuated into a decree whereby the defendant No. 1 was directed to remove encroachments over the portion within three months. A Civil Appeal Bearing No. 457 of 1991 passed by 7th Addl. District Judge, Azamgarh was preferred by which decree passed by the trial court was reversed. However, in Second Appeal No. 800 of 1995 preferred by this Court, the Judgment and decree passed by the High Court was set aside and that of the trial court was restored. Thereafter, leave to petition was preferred before the Supreme Court, which ended up in dismissal on 3.2.1997. It was in the above perspective that execution proceeding in Execution Case No. 59 of 1996 commenced. Pursuant to commencement of execution proceeding, court amin was deployed to execute decree and at that time, petitioner who was accompanied by his counsel namely, Sri Ram Singh Sharma, advocate hindered the execution of decree and consequently, court amin submitted his report 34 C2 to that effect from the execution court. It would transpire from the record that petitioner in the instant petition preferred objection in the said proceeding under Order XXI Rule 97, C.P.C. on 16.3.2004 to the effect that he had obtained an ex parte decree dated 27.10.2001 against some of the decree-holders in Suit No. 826 of 1997 from the Court of Civil Judge (J.D.) Azamgarh containing edict; restraining by permanent injunction not to interfere with the possession of petitioner. It would further appear from the record that after affording opportunity, Applications paper Nos. 341GA 2, 350 Ga 2 and 352 GA 2 were disallowed with cost quantified at Rs. 3,000 vide order dated 29.3.2004 passed by Addl. Civil Judge (S.D.) It is In the above backdrop that the present petition has been instituted by the petitioner.

(3.) Learned counsel for the petitioner canvassed that Suit No. 726 of 1997 instituted by the petitioner, culminated in being decreed vide judgment and decree dated 27.10.2001 and thus, the petitioner had a decree in his favour which had the effect that his rights over the property had come to be recognised and therefore, proceeds the submissions, he rightly resisted execution of decree in terms of the decree rendered in Suit No. 55 of 1965. To bolster up his contention, the learned counsel placed credence on a decision of Apex Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Anr., (1997) 3 SCC 694, and submitted that when under Order XXI Rule 97, C.P.C. a stranger occupying the premises in his own right and he offers resistance to the execution of the decree obtained by the decree holder against the judgment debtor qua such property, he can request the execution court to adjudicate upon his resistance and obstruction without being Insisted upon that first he must hand over possession and then only move an application under Order XXI, Rule 99, C.P.C. He further canvassed that his rights are liable to be executed at this stage. He further canvassed that the impugned order dismissing his application on the ground that earlier judgment and decree had attained finality upto the stage of Supreme Court, cannot be sustained in law Inasmuch as resistance by stranger i.e., the petitioner in the instant case is based on legitimate ground, the petitioner being equipped with the decree and the execution court, proceeds the submission erred In law in dismissing his objection in limine. He further canvassed that the order impugned herein is clearly vitiated In law inasmuch as the decree holders were parties to the original suit filed by the petitioner and therefore, the decree rendered in suit No. 55 of 1965 cannot be executed against the petitioner.