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Kamlesh Jha vs Praveen Kumar Gupta on 10 November, 2021

Author: Amit Bansal

Bench: Amit Bansal

                          $~22
                          *       IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +       CM(M) 993/2021
                                  KAMLESH JHA                                        ..... Petitioner
                                                     Through:      Mr. Kamlesh Kumar Mishra and Ms.
                                                                   Pragya Dubey, Advocates.
                                                     versus

                                  PRAVEEN KUMAR GUPTA                                ..... Respondent
                                              Through: None.

                              CORAM:
                              HON'BLE MR. JUSTICE AMIT BANSAL
                                          ORDER

% 10.11.2021 CMs No. 39707/2021 & 39708/2021 (both for exemption)

1. Allowed, subject to all just exceptions.

2. The applications are disposed of.

CM(M) 993/2021 & CM No. 39706/2021 (for stay)

3. The present petition has been filed under Article 227 of the Constitution of India seeking directions that the Civil Judge-01, South East District, Saket, may be directed to list the application filed on behalf of the petitioner under Order XXI Rule 26 of the Code of Civil Procedure, 1908 (CPC) in Execution Petition No. 220/2019 on or before 12 th November, 2021.

4. It may be noted that the suit filed by the respondent, inter alia, for recovery of possession, was decreed by the judgment dated 1st May, 2019 of the Trial Court and the petitioner was directed to hand over the vacant possession of the suit property to the respondent within two months from the decree.

5. The aforesaid judgment was carried in appeal by the petitioner and the said appeal was dismissed by the Appellate Court vide judgment dated 22nd September, 2020 along with costs of Rs.50,000/-, to be borne by the petitioner.

6. The said judgment was challenged by the petitioner by way of a second appeal, being RSA No. 8/2021 filed before this Court and the said second appeal was dismissed by this Court vide judgment dated 25th January, 2021. Subsequently, an application for recall of the aforesaid order was filed by the petitioner and the same was dismissed by this Court on 12 th October, 2021 by holding that the aforesaid application was an abuse of process of law.

7. Vide order dated 23th October, 2021, the Executing Court has, after noting the aforesaid orders passed by this in RSA No. 8/2021, issued warrants of possession in respect of the suit property and directed the respondent/decree holder to appear before the Administrative Civil Judge South East, Saket on 12th November, 2021. The bailiff has been directed to break open the locks, if any, for the purposes of the execution.

8. The counsel for the petitioner submits that the petitioner/judgment debtor had filed an application under Order XXI Rule 26 of the CPC for seeking stay of the execution proceedings so that the appellate remedy may be invoked by the petitioner. It is stated that the aforesaid application was put in the drop box at the Executing Court and the aforesaid application is to be listed on 6th January, 2022 before the Executing Court. He prays that the aforesaid application be listed on or before 12th November, 2021, the date fixed by the Executing Court for taking possession of the property.

9. The counsel for the petitioner states that an Letters Patent Appeal Signature Not Verified Digitally Signed By:MAMTA ARYA CM(M) 993/2021 Page 2 of 3 Signing Date:10.11.2021 17:33:26 (LPA) against the order dated 12th October, 2021 passed by this Court has been filed by the petitioner vide Dairy No. 852165/2021 on 21st October, 2021 but the same has not been listed till date.

10. It has been put to the counsel for the petitioner as to how LPA is maintainable against the order passed by this Court in a second appeal preferred by the petition. The counsel for the petitioner is unable to give a satisfactory answer in that regard. A perusal of the record further shows that the aforesaid LPA is lying under objections (Annexure P4 to the present petition).

11. Be that as it may, in view of the fact that an application has been filed by the petitioner under Order XXI Rule 26 of the CPC on 23th October, 2021, it would be in the interest of justice if the said application is considered by the Executing Court before warrants of possession are executed. Accordingly, without expressing any opinion with regard to maintainability or merits of the said application, it is directed that the aforesaid application be considered by the Executing Court on 12 th November, 2021 itself.

12. The present petition is disposed of in above terms.

13. The registry is directed to communicate this order on an urgent basis to the Executing Court.

AMIT BANSAL, J NOVEMBER 10, 2021 Sakshi R. Signature Not Verified Digitally Signed By:MAMTA ARYA CM(M) 993/2021 Page 3 of 3 Signing Date:10.11.2021 17:33:26