Allahabad High Court
Rajbir And 2 Others vs State Of U P And 2 Others on 11 July, 2019
Author: Rajiv Joshi
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 72 Case :- MATTERS UNDER ARTICLE 227 No. - 5194 of 2019 Petitioner :- Rajbir And 2 Others Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Shri Krishna Mishra Counsel for Respondent :- G.A. Hon'ble Rajiv Joshi,J.
Heard Sri Shri Krishna Mishra, learned counsel for the petitioners and learned A.G.A. for the State.
The present petition under Article 227 of the Constitution has been filed challenging the order dated 13.06.2019 passed by Additional Chief Judicial Magistrate, Court No.2, Ghaziabad in Execution Application No.1669 of 2019 (Smt. Manju Rani Versus Rajbir and Others) as well as the consequential order dated 29.05.2019.
It reflects from the record that in a proceeding under Section 12 of Domestic Violence Act, 2005 initiated by the complainant/ respondent no.3, an order was passed on 30.08.2016 restraining the petitioners from ejecting the complainant/ respondent no.3 from the house in dispute. Against that order, husband of respondent no.3-Hemant (son of petitioner no.1, Rajbir) has filed Criminal Appeal No.97 of 2016, which was allowed by the appellate court vide order dated 30.08.2017. In the operative portion of the order of the appellate court, it is only mentioned that the appeal is allowed and the trial court was directed to decide the matter on merits after taking evidence. There is no specific order to set aside the order impugned. Subsequently, an application was filed by the respondent no.3 for executing the order dated 30.08.2016 passed in her favour as the petitioners are trying to dispossess the opposite party no.3 from the house in dispute. The executing court vide impugned order dated 13.06.2019 directed the petitioners to comply with the earlier order dated 30.08.2016.
The contention of learned counsel for the petitioners is that the appeal filed against the ex-parte order dated 30.08.2016 stands allowed and, therefore, there is no occasion for any execution of the same.
I have considered the submission raised by the learned counsel for the petitioners and perused the record.
From the record, it is apparent that against the order dated 30.08.2016 only the husband of respondent no.3- Hemant filed the appeal and not by the petitioners and even the appellate authority has not specifically set aside the order dated 30.08.2016.
Under these circumstances, the order dated 30.08.2016 passed against the petitioners remained unchallenged and is liable to be executed vide impugned order. The petitioners were restrained from evicting the respondent no.3 from the house in dispute and the said order has to be executed.
I do not find any illegality or infirmity in the order impugned passed by the executing court.
The petition lacks merit and is, accordingly, dismissed.
Order Date :- 11.7.2019 Radhika