RAJENDRA KUMAR Vs. 3RD ADDL DIST JUDGE MORADABAD

JUDGEMENT

(1.) By this petition under Art.226 of the Constitution of India the orders D/-16-5-88 passed by the III Additional District Judge, Moradabad and the order D/-13-8-87 passed by the Munsif, Chandausi, Moradabad, on the application under O.21, R.97, C.P.C. (for short the Code) filed by the decree-holder, respondent 3 in a suit for ejectment from the accommodation in dispute are sought to be quashed.

(2.) The petitioner is son of the Sheo Shankar, who was a party to the suit No. 241/66 filed by respondent No. 3 for the ejectment of Sheo Shankar and one more person. That suit was decreed on the basis of a compromise (43-Ka). To execute that decree an application was filed by respondent 3 (Execution Case No. 200/72). In that application prayer was that the ejectment of judgment-debtor may be effected and the amount in the decree may be paid to decree-holder. Parwana Dakhal was issued. On that the Amin made a report that without the assistance of police no effective execution can be carried out on the spot by ejectment of the judgment-debtor. On 25-3-82 the execution application was dismissed. Appeal against that order also failed. Thereafter matter was taken to the High Court and the High Court allowed the appeal and quashed the orders of the learned Munsif as well as the order passed by the appellate Court and the executing Court was directed to proceed with the execution of the decree. It was also directed by this Court that the allotment order in favour of Rajendra Kumar, the present petitioner has to be ignored and immediate possession may be delivered to the decree-holder. Against that order of the High Court the petitioner preferred a leave petition before the Supreme Court. But the same was also dismissed. Thereafter the matter was taken up by the trial Court on the application of the decree holder under O.21, R.97 of the Code. The petitioner, who was the son of Sheo Shankar, who was a party to the earlier suit for ejectment, filed an objection that he has got an allotment order and he was in possession and the decree need not be executed. That objection has been overruled on the basis of the judgment of this Court and the Supreme Court.

(3.) Learned counsel for the petitioner urged that objection of petitioner under O.21, R.97 was maintainable. He placed reliance on Bhagwat Narayan Dwivedi v. Kasturi, AIR 1974 Madh Pra 26. But in that case it was resisted by the third party and not by the son of the judgment-debtor, and in that case the High Court has not earlier decided the matter in favour of the objector. In the present case in earlier proceedings before this Court it was directed that the execution application may be decided ignoring the allotment order in favour of the petitioner. Hence the case aforesaid is not applicable to the facts of the present case.