RAFEY Vs. QAYAMUDDIN AND OTHERS

JUDGEMENT

(1.) RAFEY son of Mohd. Shafi, resident of 48A/5, Mohalla Chak, Tehsil Sadar, District Allahabad has filed present writ petition for quashing the order dated 25.9.2004 and 7.3.2008 (Annexures 6 and 8) respectively, by means of which objection taken by him under Order XXI, Rule 97/101, C.P.C. has been rejected by the Executing Court and has been affirmed in Revi­sion.

(2.) BRIEF background of the case is that Badruddin was the tenant of the shop bearing Municipal No. 58 S.C. Basu Road, Chak, Allahabad. Petitioner claims that he was brought up by his Mamoo and his parents were hand to mouth. Petitioner claims that Badruddin (Mamoo) executed will on 5.1.2001 in favour of petitioner son of Smt. Tahrun Nisha and Riyaz Ullah son of Sakirun Nisha wife of Sageer Ullah. Petitioner has specially mentioned that Sakirun Nisha had expired long long ago and whereabout of her son Riyaz Ullah are also not available. Petitioner claims that Badruddin died on 3.2.2001 and thereafter, tenancy rights have devolved upon the petitioner and he has been paying rent of the shop in dispute besides electricity charges. Petitioner has stated that collusive suit was sought against Mst. Rehana Khatoon for the said premises in question and ex parte order was passed on 29.5.2002 for ejectment of Rehana Khatoon from the shop in dispute. Based on the ex parte decree dated 29.5.2002, Execution Case No. 22 of 2002 (Qayamuddin v. Smt. Rehana Khatoon) has been initiated. Peti­tioner submits that as his rights were going to be effected as such he has moved application under Order XXI, Rule 97/101, C.P.C. obstructing execution of ex parte judgment and decree dated 29.5.2002. Qua the said application moved, objec­tions were filed to which Rejoinder Affidavit was also filed. Executing Court on 25.4.2007 rejected the said application. Petitioner preferred Revision and same has also been rejected. At this juncture present writ petition has been filed.

(3.) AFTER respective arguments have been advanced, factual position, which is emerging in the present case is that Badruddin was tenant of the shop bearing Municipal No. 58 S.C. Basu Road, Chak, Allahabad. Petitioner claims that will was executed in his favour on 5.1.2001 and petitioner was staying with his Mamoo and was brought up by him and once Badruddin died on 3.2.2001, tenancy of the shop would devolve upon him.