Rajasthan High Court - Jaipur
Sardar Singh vs Radha Ballabh Andors on 5 July, 2022
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.7499/2016
Sardar Singh S/o Shri Murlidhar Mangawa, aged about 47 years,
resident of V&P Bassi, Tehsil Khandela, District Sikar (Raj.) C/o
Gopi Juice Centre, Old Tehsil Road, Srimadhopur, District Sikar
(Raj.)
----Petitioner
Versus
1. Radha Ballabh S/o Ram Gopal
(Expired on 11.4.2014)
1/1 Vijendra Kumar S/o Late Shri Radha Ballabha, R/o House
No. 2298, Rasta Ramlalaji ka, Johri Bazar, Jaipur (Raj.)
1/2 Mahesh Kumar S/o late Shri Radha Ballabh, R/o Prem
Daal Mill, Rasta Ramlalaji Ka, Johri Bazar, Jaipur (Raj.)
1/3 Rajendra Kumar S/o late Shri Radha ballabh, R/o House
no. 2300, Rasta Ramlalaji ka, Johri Bazar, Jaipur (Raj.)
1/4 Premlata D/o Late Shri Radha Ballabh W/o Shri vishnu
R/o Khataiwala Bhawan, Second crossing, khejro ka rasta,
Chandpole Bazar, Jaipur (Raj.)
2. Radha Kishan Son Of Ram Gopal, House No. 2298, Rasta
Ramlalaji Ka Johri Bazar, Jaipur Raj.
2/1 Smt. Indira Devi W/o late Shri Radha Kishan Agarwal,
resident of 2298. Ramlala Ji Ke Rasta, Johri Bazar , Jaipur
(Raj.)
2/2 Giriraj Prasad Agarwal S/o late Shri Radha Kishan
Agarwal, resident of 916-B , Kisan Marg , Barkat Nagar ,
Tonk Phatak , Jaipur ( Raj . )
2/3 Girdhar Kumar Agarwal S/o late Shri Radha Kishan
Agarwal , resident of 39 . Khandelwal Nagar Vistar , Prem
Nager Pulia , Agra Road , Jaipur ( Raj . )
2/4 Ramesh Chandra Agarwal S / o late Shri Radha Kishan
Agarwal ,resident of 9. Luv Kish Nagar - II , Barkat
Nagar , Tonk Phatak , Jaipur ( Raj . )
2/5 Nawal Kishore Agarwal s/o late Shri Radhe Kishan
Agarwal , resident of H - 33 , Madhuvan Colony , Kisan
Marg , Barkat Neger . Tonk Phatak , Jaipur ( Raj . )
2/6 Smt . Kanta Goyal W/o Shri Om Prakash Goyal ( D/o late
Shri Radha Kishan Agarwal ) resident of Brij Villa 62 ,
Deshbhushan Nagar , Galta Gate , Delhi Byepass , Jaipur
(Raj)
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2/7 Smt . Shakuntala Agarwal w/o Shri Bhagwandhan Attar
( D / o late Shri Radha Kishan Agarwal ) , resident of
Attar Bhawan , Sonthali Walon Ka Rasta , Near Rawat
Misthan Bhandar . Chaura Rasta , Jaipur ( Raj .)
2/8. Smt. Manju Agarwal W/o Shri Sanjeev Bansal (D/o Late
Shri Radha Kishan Agarwal, R/o 17, Deshbhushan Nagar,
Galta Gate, Delhi Byepass, Jaipur (Raj.)
3. Radhey Shyam S/o Ram Gopal Now Deceased,
3/1. Mohan Das s/o Radhey shyam,
(Expired on 30.04.2018)
3/1//1 Smt. Bhagwati Devi W/o Late Shri Mohan Das
3/1/2 Vishnu S/o Late Shri Mohan Das
3/1/3 Dinesh S/o Late Shri Mohan Das
3/1/4 Deepak S/o Late Shri Mohan Das
All R/o 251, Krishna Vihar, Gopalpura byepass, Jaipur
(Raj.)
3/2 Ras Bihari S/o Radhey Shyam,
3/3 Prem Chand S/o Madho Bihari
3/4 Anand S/o madho Bihari,
3/5 Sunil S/o Madho Bihari,
All R/o 1765, Deewan Bhagchand ki Gali, Sutholi Walon ka
Rasta, Chaura Rasta, Jaipur (Raj.)
4. Ratan Bai Dohiti Of Ram Gopal,
5. Padam Bai Dohiti Of Ram Gopal,
Both R/o Ajmer (Raj.)
...Decree Holders/Non-Petitioners
6. Surji Devi W/o Late Mukti Lal Now Deceased
7. Prahlad Ram S/o Late Mukti Lal Now Deceased,.
7/1 Champa Devi W/o late Shri Prahlad Ram
7/2 Deepak Kumar S/o late Shri Prahlad Ram
7/3 Prem Devi D/o late Shri Prahlad Ram
7/4 Suman Devi D/o late Shri Prahlad Ram
7/5 Beera Devi D/o late Shri Prahlad Ram
7/6 Gyarsi Devi D/o late Shri Prahlad Ram
7/7 Mamta Devi D/o late Shri Prahlad Ram
7/8 Samta Devi D/o late Shri Prahlad Ram
All R/o Ward no. 15, Srimadhopur, Teshil Srimadhopur,
District Sikar.
8. Damodar Prasad S/o Shri Mukti Lal,
9. Manohar Lal S/o Shri Mukti Lal,
10. Banwari Lal S/o Shri Mukti Lal,
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11. Phool Chand S/o Shri Mukti Lal,
12. Shanker Lal S/o Shri Mukti Lal,
13. Shambhu Dadyal S/o Shri Mukti Lal,
14. Satya Narain S/o Shri Mukti Lal,
All R/o Srimadhopur District Sikar Raj.
15. Ganesh S/o Shri Bodu Mali, R/o Srimadhopur District
Sikar Raj.
----Judgement Debtors/Non-Petitioners
For Petitioner(s) : Mr. Ajay Gupta, Adv. with Ms. Sonal
Gupta, Adv.
For Respondent(s) : Mr. Dinesh Kala, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
05/07/2022
This writ petition has been filed by the petitioner, challenging
the order dated 05.05.2016, wherein, Civil Judge, Srimadhopur,
District Sikar, has dismissed the application filed by the petitioner
under Section 47 CPC.
Learned counsel-Mr. Dinesh Kala appearing for the
respondent, on previous occasion, submitted that the writ petition
filed by the petitioner, deciding application under Section 47 CPC is
not maintainable in view of the judgment passed by the
Coordinate Bench of this Court in the case of Kashiram Vs.
Hansraj, reported in AIR 1983 Rajasthan 145.
Learned counsel for the petitioner had sought time to go
through the said judgment, and as such, he was granted time.
This Court had heard the matter on 11.05.2022, and counsel
appearing for the respondents also placed reliance on the
judgment of the Apex Court passed in the case of Ghanshyam
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Das Gupta Vs. Anant Kumar Sinha & Ors., reported in AIR
1991 SC 2251.
Learned counsel for the respondents had further placed
reliance on different judgments passed by the Apex Court as well
as by Madras High Court and submitted that the present writ
petition is liable to be dismissed.
Learned counsel-Mr. Ajay Gupta appearing for the petitioner
had again sought time to come prepared on the issue of maintainability of the writ petition.
On 23.05.2022, the learned counsel for the petitioner submitted that an application has been filed for treating the present writ petition as revision petition on account of objection being raised by learned counsel for the respondents-Mr. Dinesh Kala, and as such, time was sought by learned counsel for the respondents to oppose conversion of present writ petition into revision petition.
The case was taken up today.
Learned counsel for the respondents has placed reliance on a judgment passed by the Bombay High Court in the case of Bharatkumar Agrawal & Ors. Vs. M/s. Anita Trust & Anr; reported in AIR 2003, Bombay 197, wherein, the Bombay High Court has held that the powers under Article 227 are to be sparingly used and conversion of several pending revision applications en masse into a petition under Article 227 would be against the dicta of the Supreme Court and exercising such powers will amount to casual approach to the provisions of Article 227 of the Constitution.
Learned counsel for the respondents on the strength of the said judgment submitted that this Court may dismiss the present (Downloaded on 25/12/2022 at 01:05:51 AM) (5 of 6) [CW-7499/2016] writ petition and if the petitioner wants to avail proper remedy for filing revision petition under Section 115, he is always at liberty to take the proper remedy while filing a fresh revision petition and if the petitioner does so, he can also file the application for condonation of delay, however, the present writ petition needs to be dismissed by this Court.
I have heard the submissions made by learned counsel for the parties and perused the material available on record.
This Court on the basis of objection validly raised by learned counsel for the respondents, finds that if application filed by the petitioner under Section 47 CPC was dismissed, the proper course for the petitioner was to file revision petition before this Court.
There is no quarrel on the proposition of law laid down by the Bombay High Court as well as by the Apex Court that after rejection of an application under Section 47 CPC, the remedy to the aggrieved party is to file revision petition.
The question before this Court is now with regard to treating the present writ petition as a revision petition or not.
This Court finds that the present writ petition was filed in the year 2016 and interim order was also passed and same is continuing till date.
This Court finds that the pendency of the writ petition for almost six years and now asking the petitioner to file revision petition, will be a travesty of justice.
This Court finds that ultimately a revision petition was also required to be filed before the High Court and if considering all the facts and pendency of present writ petition, if the same is converted into revision petition and no prejudice will be caused to any of the party.
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(6 of 6) [CW-7499/2016] The objection of the learned counsel for the respondents that the interim order is continued in this case, and as such, the decree holder is not able to get fruits of the decree and further scope of revision petition under Section 115 is very limited, and as such, the Court should dismiss this writ petition, this Court finds that whatever objection about scope of revision petition or any other ground, which is available to the learned counsel for the respondents, can also be raised before the Revisional Court i.e. High Court and the Court after considering the submissions of both the counsels, can pass the appropriate order.
This Court finds that the issue is pending before this Court about the right of the petitioner to object in execution application and fact of filing an independent suit is also brought into notice of this Court and on the other hand, the learned counsel for the respondent submitted that the respondents are only asking for the execution of a decree which has been upheld upto the High Court, and as such, no third party right should be created in favor of any other person during pendency of the execution application, and as such, the decree holder is entitled to get the judgment & decree implemented, suffice it to say by this Court that the Competent Court will hear the submissions of both the learned counsels.
This Court accordingly directs the Registry to treat this writ petition as a revision petition and the revision petition may be listed immediately before the appropriate Bench having the roster of such nature.
(ASHOK KUMAR GAUR),J Bhavnesh Kumawat/Ramesh Vaishnav 30 (Downloaded on 25/12/2022 at 01:05:51 AM) Powered by TCPDF (www.tcpdf.org)