ANUJ KUMAR Vs. SHANTI DEVI AND ORS.

JUDGEMENT

(1.) The present writ petition is directed against the order dated 2.8.2014, rejecting the application of plaintiff, under Order XXI, Rule 29 of the Code of Civil Procedure, 1908, as well as the order dated 15th January, 2015, rejecting the revision against it. Facts in brief giving rise to the dispute are that Late Raja Ram, who was the recorded tenure holder executed an agreement to sell in respect of the suit property in favour of Smt. Shanti Devi, who instituted original suit No. 130 of 1976 for specific performance of such agreement to sell. The suit for specific performance was decreed on 16.2.1979. An appeal, under section 96, C.P.C., being Civil Appeal No. 95 of 1981 was also rejected on 13.7.1982. A second appeal No. 316 of 1982 was filed before this Court, which was ultimately rejected on 20th March, 1997. During pendency of the second appeal, Raja Ram executed another sale-deed, in respect of the part of land covered by decree, in favour of father of petitioner Late Jai Singh. An execution case No. 6 of 1997 was thereafter filed by the decree holder. The petitioner's father Jai Singh in respect of the same property filed an original suit for injunction, being original suit No. 1001 of 1997, which is pending. Thereafter an application was moved in execution case No. 6 of 1997, under Order XXI, Rule 29, C.P.C., on the ground that in respect of the same property, an original suit No. 1001 of 1997 is pending, and therefore, the proceedings of execution is liable to be stayed. Initially the application was rejected by both the Courts below on the ground that such an application cannot be moved by a third party. The orders in this regard were challenged by filing writ petition No. 1592 of 2000, which was allowed, and the Courts below were directed to decide the application, under Order XXI, Rule 29, C.P.C., afresh on merits, after taking into consideration the amendment made in the provision, on account of which the application at the instance of the petitioner was maintainable. Pursuant to the aforesaid orders passed by this Court on 27.9.2013, the Courts below have considered the claim on merits, and have rejected the application giving rise to filing of the present writ petition.

(2.) Sri Sanjiv Singh, learned Counsel for the petitioner, submits that the orders passed by the Courts below are wholly illegal and perverse, inasmuch as a suit for injunction is pending in the same Court, at the instance of the petitioner, in respect of the same subject-matter, for which the execution is also pending in the same Court, and therefore, the application, under Order XXI, Rule 29, C.P.C., was liable to be allowed. Sri Singh further submits that as on date, the petitioner has a better title over the property, as a sale-deed exists in his favour, and therefore, the proceedings of the execution case was liable to be stayed.

(3.) Reliance has been placed upon the judgment of the Apex Court in Shaukat Hussain @ Ali Akram and others v. Smt. Bhuneshwari Devi (dead) by L.Rs. and others, 1973 AIR(SC) 528 and upon the decision in Babu Lal v. M/s. Hazari Lal Kishori Lal and others, 1982 8 AllLR 258, to contend that the orders passed by the Courts below are in teeth of the aforesaid law.