PUSHPA BAI Vs. SHIV KUMAR

JUDGEMENT

(1.) With the consent of learned counsel for the parties, the petition is heard finally.

(2.) THIS writ petition under Article 227 of the Constitution of India is directed against the order dated 10.01.2014 and 10.02.2014 passed in Execution Case No. 382 -A/2004, by the 1st Civil judge, Class -II, Harda. It is contended by learned counsel for the petitioner that a civil suit was filed by the respondent No. 1 seeking decree of possession against the petitioner and others and the said suit has been decreed ex parte against the petitioner. Since the ex parte judgment and decree was passed without the notice of the suit, fresh suit has been filed by the petitioner challenging the validity of judgment and decree granted in the suit of respondent No. 1. The said suit has been dismissed and an appeal against such judgment and decree is filed by the petitioner which is pending. During pendency of the said appeal, since the execution proceedings were initiated by respondent No. 1, an application under Order 21 Rule 29 of CPC was filed by the petitioner before the Executing Court. The said application was rejected vide order dated 13.11.2013, therefore, the writ petition was required to be filed before this Court being W.P. No. 21009/2013. The said writ petition was disposed of vide order dated 11.12.2013 granting liberty to the petitioner to make application afresh with requisite documents before the Executing Court for grant of stay.

(3.) UPON service of notice of the writ petition, the respondent No. 1 has appeared through counsel and it is contended by learned counsel for the respondent No. 1 that a complete fraud has been played by the petitioner as the suit has rightly been decreed. Since the execution proceedings have been completed, only the relief was granted to cut the standing crops but the petitioner is obstructing the possession of respondent No. 1, therefore, the application has rightly been rejected by the Court below and, hence the writ petition is liable to be dismissed.