B.D. SETH Vs. ADDITIONAL CITY MAGISTRATE ETC.

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India. The property in dispute is a first floor of the house No. 4/278 -B, 'Chaya' Vishnupuri, Kanpur. A suit No. 32 of 1977 was filed against Sudhir Seth and M/s. Translet Electronics Limited for ejectment from the premises in dispute and for recovery of arrears of rent and damages. This suit was decreed on September 21, 1977. Against the said decree, a civil revision was filed in this Court. After lengthy proceedings in this Court, the matter was remanded to the court, below. By the judgment dated April 7, 1984 the IVth Additional District Judge, Kanpur again decreed the suit. Against the said decree, another civil revision No. 318 of 1984 was filed in this Court. This civil revision was dismissed by this Court, on July 25, 1984. Against the judgment dated July 25, 1984 passed by this Court, the judgment debtors filed a petition for special leave to appeal to the Hon'ble Supreme Court. The special leave to appeal to the Hon'ble Supreme Court was also dismissed on September 3, 1984. The ultimate effect was that the decree for ejectment became final. After the decree became final and when it was put to execution, the judgment debtors filed objections under Section 47 of the Code of Civil Procedure (hereinafter referred to as the C.P.C.). These objections were allowed and by the judgment dated January 1, 1985, the executing court held that the decree for ejectment was null and void. Against this judgment dated January 1, 1985, a civil revision No. 169 of 1985 was filed in this Court. This came up for hearing before me and ultimately by the judgment dated 23rd May, 1985, I allowed the revision, set aside the judgment dated January 1, 1985 and dismissed the objections of the judgment debtors under Section 47 of the C.P.C. The facts which ultimately culminated in my judgment dated May 23, 1985 have been stated in detail in the said judgment and the decision in Suresh Chand Tandon and another v. Translet Electronics Limited, Kanpur and Sudhir Seth, 1985 (II) A.R.C. 112.

(2.) THAT after May 23, 1985, the decree holder again initiated proceedings for execution of the decree. Thereafter, the petitioner B.D. Seth, the father of Sudhir Seth, judgment -debtor filed a writ No. 7480 of 1985 in this court for a writ of mandamus commanding the Additional District Judge not to evict the petitioner in execution of the decree in suit No. 32 of 1977 on the ground that an allotment order has been passed in his favour on May 2, 1985. It may be noted here that on May 23, 1985 this court held that the decree for ejectment was not null and void. The fact of the allotment order was not brought to the notice of this court and surreptitiously an order was obtained for allotment in favour of B.D. Seth, petitioner who is the father of judgment -debtor Sudhir Seth on May 2, 1985 from Tanvir Zafar Ali, Rent Control and Eviction Officer, Kanpur. As soon as the landlords came to know that an allotment order has been obtained in the name of B.D. Seth, they filed a revision in the court of the District Judge. Ultimately after keen contest, the writ petition was disposed of at the admission stage by the order dated July 18, 1985. Against the order dated July 18, 1985, the petitioner went to the Hon'ble Supreme Court. The Supreme Court on January 13, 1986 passed the following order:

(3.) I have heard learned counsel for the parties. Learned counsel for the petitioner has urged that on September 10, 1984 a warrant of possession had been issued by the executing court and as such, the property in dispute was likely to fall vacant and consequently, vacancy arose. The view taken to the contrary in. the impugned order is manifestly erroneous.