SANTOSH KUMAR Vs. MURTI MANDIR SRI NYAMAJI

JUDGEMENT

(1.) THE petitioner is aggrieved by the order dt. 18.4.2014, passed by the Civil Judge (SD), Fatehpur, whereby the learned Magistrate has rejected an application filed by the petitioner under Order 21, Rule 36 CPC in Execution Petition No. 12/2010. The brief facts of the case are that the respondent No. 1, Murti Mandir Sri Nyamaji, filed a civil suit seeking eviction, recovery of arrears of rent and permanent injunction against the respondent No. 2. The suit was decreed by the learned trial Court vide judgment and decree dt. 14.9.2009. Being aggrieved by the judgment and decree, the respondent No. 2, filed the Civil First Appeal, which was dismissed by the learned Judge by order dt. 19.2.2013. The respondent No. 2 also filed a Civil Second Appeal before this Court. The Civil Second Appeal was also dismissed by this Court by order dt. 31.1.2014. During the pendency of the execution proceedings, the petitioner -objector, Santosh Kumar, filed the objection petition under Order 21 Rule 36 CPC. By order dt. 18.4.2014, the learned Executing Court dismissed the objection petition. Hence, this petition before this Court.

(2.) MR . Amrit Surollia, the learned counsel for the petitioner has vehemently contended that the petitioner should have been permitted to lead evidence to substantiate his objection. However, the learned Magistrate has failed to give him an opportunity to lead his evidence. Secondly, without assigning any substantial reason, the learned Magistrate has dismissed his application under Order 21 Rule 36 CPC. Therefore, the impugned order dt. 18.4.2014 deserves to be set aside.

(3.) A bare perusal of the writ petition clearly reveals that the order dt. 5.3.2014 passed by the learned Magistrate has not been challenged before this Court. Therefore, the petitioner cannot be permitted to challenge the said order in an indirect manner. For, what the Court cannot grant directly, it cannot do indirectly either. A bare perusal of the impugned order dt. 18.4.2014 clearly reveals that the learned Magistrate has relied upon the judgment passed by this Court in the case of Shri Devi (supra) and has concluded that a decree would be applicable and can be executed against the family members of the judgment -debtor. Admittedly, the petitioner is the brother of the judgment -debtor. Therefore, the decree can be executed against him. Hence, the learned Magistrate has given cogent reason for dismissing the application filed by the petitioner. Therefore, this Court does not find any perversity or illegality in the impugned order. The writ petition being devoid of any merit is, hereby, dismissed. The stay application also stands dismissed.