SHRI RAM Vs. RAJESHWAR

JUDGEMENT

(1.) Heard Sri B.K. Srivastava, learned Senior Counsel assisted by Ms. Saumya Srivastava for the petitioner and Sri Radhey Shyam Gupta for the respondents.The petitioner has invoked the supervisory jurisdiction of this Court under Article of the Constitution in challenging an order dated 30.1.2019 passed by IIIrd Additional District and Sessions Judge, Jaunpur. By the said order, the Civil Appeal No.8 of 2015 filed by respondents has been allowed. The judgement and order dated 28.1.2015 passed by the executing court in Misc. Case No.23 of 2014 allowing the objection of the petitioner under Order 21, Rule 97 CPC has been set aside.

(2.) The facts in brief are that respondents 1 and 2 are holders of decree of specific performance of an agreement for sale of an immovable property passed in their favour in Original Suit No.7 of 1977. The said decree is being executed by the respondent-decree holders vide Execution Case No.33 of 1982. The application of the respondent-decree holders for delivery of possession was registered as Misc. Case No.91 of 1985. The petitioner, a third person to the execution proceedings, offered resistance to the delivery of possession by filing objection Paper No.4 Ga/71/1 claiming independent right, title and interest in the suit property. The executing court, while allowing the objection recorded a specific finding that the decree holders do not get title over the suit property on the basis of the sale deed obtained by them as the property belonged to Bhagauti, father of the present petitioner and Bachchu, father of defendant-respondents 3 to 7, the executent of the agreement for sale, had no right to transfer it. Aggrieved thereby, the respondent- decree holders filed Civil Appeal No. 8 of 2015 which has been allowed by the appellate court by impugned judgement and decree dated 30.1.2019. The appellate court has held that on the date of institution of the suit, name of father of defendant-respondents was duly recorded. The petitioner had taken steps for getting his name restored in the revenue records. These proceedings are still pending. In case he succeeds in those proceedings, he can seek restitution under Section 144 CPC.

(3.) Learned counsel for the respondents-decree holders raised a preliminary objection relating to maintainability of the instant petition. He submitted that the objection filed by the petitioner was decided by the executing court as per provisions of Rule 101 CPC. Consequently, it amounted to be a deemed decree under Rule 103 CPC. For the said reason, a regular civil appeal was filed by the respondent-decree holders challenging the order of the executing court dated 28.1.2015. He submitted that the judgement passed by the appellate court in appeal also amounts to a deemed decree and could only be challenged in second appeal and not by way of petition under Article of the Constitution.