Allahabad High Court
Smt. Ekta Agarwal And 2 Ors. vs Alindra Chandra And 3 Ors. on 25 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2184
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- MISC. SINGLE No. - 36910 of 2019 Petitioner :- Smt. Ekta Agarwal And 2 Ors. Respondent :- Alindra Chandra And 3 Ors. Counsel for Petitioner :- Abhay Kumar Srivastva Counsel for Respondent :- Pankaj Srivastava Hon'ble Rajeev Singh,J.
Vakalatnama filed by Mr. Ram Sankar Singh, Advocate and Mr. Ram Raj Singh, Advocate on behalf of the respondent No.1 is taken on record.
Heard learned counsel for the petitioners, Mr. Pankaj Srivastav, learned Additional Chief Standing Counsel, Mr. Rama Shankar Singh, learned counsel for the respondent No.1 and perused the record.
The present petition has been filed for quashing the order dated 18.12.2019 passed by the District Judge, Lucknow in P.A. Execution Case No.804 of 2019 (Alinda Chandra vs. R.P. Srivastava).
Learned counsel for the petitioners submitted that husband of the opposite party No.1 was the tenant and after his death, she is running the shop and rest of the petitioners are also tenants and he further submitted that opposite party No.1 filed a case under Section 21 A of U.P. Act No.13 of 1972, which was registered as P.A. Suit No.3 of 2007 (Alinda Chandra vs. R.P. Srivastava @ R.K. Srivastava). He further submitted that in the aforesaid suit, the petitioners was not arrayed as party despite the fact that the petitioners are in possession of the property in question. He further submitted that R.P. Srivastava was in heaven as he died in the year 2000, but the aforesaid suit was filed in the year 2007 and the dead person was arrayed as the opposite party in the aforesaid suit and thereafter suit was allowed ex parte on 18.12.2013 and thereafter, an execution case was filed by the respondent No.1 which was registered as P.A. Execution Case No.11 of 2014 (Alindra Chandra vs. R.P. Srivastava) in the court of JSCC, Court No.18, Lucknow.
Learned counsel for the petitioners further submitted that applicants appeared in the aforesaid execution proceeding and filed objection on 28.11.2018 which is available on the record, as the court was vacant, then the respondent No.1 filed the Petition No.31167(M/S) of 2019 (Alinda Chandra vs. ADJ-I (Small Causes), District & Sessions Court, Lko & Ors.) before this Court. He further submitted that in the aforesaid petition, the petitioners were not arrayed as the party, deliberately and the petition was decided vide order dated 05.12.2019 and the aforesaid execution case was transferred to the court of District Judge, Lucknow and it was also directed to the District Judge, Lucknow that the execution may be decided, expeditiously.
Learned counsel for the petitioners further submitted that the aforesaid order passed by the this Court was placed before the District Judge on 11.12.2019 and also requested for compliance of the order dated 05.12.2019 passed in Petition No.31167(M/S) of 2019 (supra) and in view of the order of this Court, the execution case was fixed on 12.12.2019 at 02:00 p.m. for further hearing. On the next date respondent No.1 was present before the court below and the office prayed time for service on the parties to the execution case then five days time was granted by the District Judge, Lucknow for serving notice to the parties, thereafter, the aforesaid execution case was listed on 13.12.2019 and thereafter, on 18.12.2019. In the order dated 18.12.2019, the learned District Judge, Lucknow observed that office again requested for some more time for the service on the respondent No.1 and other parties to the execution case but without giving any further time to the office as per the rule 89-A of General Rule (Civil) Writ of possession was issued to the police officials for eviction in compliance of the order dated 05.12.2019 passed by this Court in Petition No.31167(M/S) of 2019 (supra). He further submitted that the objections are pending but the same have not been decided and the provision of Rule 89-A was also ignored by the learned District Judge, Lucknow, therefore, the order impugned is liable to be set aside and the District Judge may be directed to decide the objections on merit, then proceed for deciding execution.
Learned Additional Chief Standing Counsel as well as learned counsel for the respondent No.1 submitted that petition is not maintainable, as he failed to place any documentary evidence in relation to his tenancy and submitted that they are strangers, but they also conceded the fact that petitioners moved objection before the court below, which are still pending for disposal. They further submitted that objection filed by the petitioners are not registered till today and they further submitted that Execution Case No. 69 of 2018 was registered on the objection of other strangers and not on the application of applicants.
Considering the arguments of the learned counsel for the petitioners as well as Additional Chief Standing Counsel and counsel for the respondent No.1, it is evident that case was filed by the respondent No.1 which was registered as P.A. Suit No.03 of 2007 (supra) and arrayed R.K. Srivastava @ R.P. Srivastava as respondent, but no one put in appearance on his behalf, thereafter, it was decided on merit on 18.12.2013 by the JSCC Court, Lucknow. Then Execution Case No.11 of 2014 was filed by the opposite party No.1 arraying Mr. R.K. Srivastava as opposite party and notice was issued then publication was made on 31.10.2017 in the newspaper, in the meantime, the petitioner appeared and filed objections and the respondent No.2 also filed reply to the objections and objections of the petitioners are pending for disposal. In the meantime, the petitioner No.1 filed petition under Section 227 of the Constituion of India before this Court, which was registered as Petition No.31167(M/S) of 2019 (supra) and the memo of the aforesaid Petition reveals that the petitioners have not been arrayed as the party, in the aforesaid petition, the prayer was made for taking action against the erring police officials and also requested to issue a direction for ensuring execution of judgment and decree dated 18.03.2013 passed by JSCC, Lucknow forthwith.
The aforesaid petition was decided on 05.12.2019. The order passed in the aforesaid petition by this Court on 05.12.2019 is as under:-
"This writ petition is filed by the petitioner claiming that he has a decree dated 18.12.2013 in JSCC P.A. Case No.3 of 2007 with regard to eviction of opposite party No.7. The decree was never challenged. Therefore, the petitioner filed P.A. Execution Case No.11 of 2014 (Alinda Chandra. Vs. R.P. Srivastava). In the said case, learned First Additional JSCC Court/Court No.18, Lucknow passed detailed orders issuing a writ of possession and also direct the police of concerned police station to assist the executing Officer. In furtherance thereto, though, O.P. No.5, Station Incharge, PS Wazeerganj, district Lucknow and O.P. No.6, Sub-Inspector PW Wazeerganj, district Lucknow went with the executing Officer but instead of assisting the officer, on objection being raised by third party, without taking any action came back and thereafter, lodged FIR on 13.11.2018. Thereafter, the Execution Court passed an order on 29.5.2019 calling for an explanation from the concerned Officer. It appears that no explanation was given. Therefore, on 22.7.2019, the Incharge of police station was called in person fixing 30.7.2019 on which date, it appears that he did not appear. It appears that the concerned Court is vacant since then and execution proceedings are pending.
Thus, the petitioner moved an application before the District Judge, Lucknow for transferring execution to some Court but no orders are being passed.
This appears to be a serious matter where police authorities instead of assisting the Court, have taken a novice method, unheard in law, of filing FIR against persons who are coming in way of law. The police authorities are not expected to lodge FIR when obstruction to the execution of Court's order is committed, but to take strict action against the erring persons. It was duty of concerned police officers to get the decree of the Court executed. However, they appear to have miserably failed to do. I do not see any reason as to how an FIR could be lodged by police in such circumstances. Without going further in the matter and looking to the seriousness of the matter, I find it appropriate that the District Judge, Lucknow should proceed with this case.
Therefore, P.A. Execution Case No.11 of 2014 (Alinda Chandra. Vs. R.P. Srivastava) is transferred to the Court of District Judge, Lucknow, who shall proceed with the execution proceedings on day to day basis. If required, the District Judge, Lucknow shall direct the S.S.P., Lucknow to assist in the matter and the S.S.P., Lucknow shall ensure the compliance thereof.
With the aforesaid, the writ petition is disposed of."
The aforesaid order of this Court was placed before the learned District Judge on 11.12.2019 and in pursuance of the direction of this Court dated 05.12.2019, the record of P.A. Execution Case No.11 of 2014 (supra) was summoned by the District Judge, Lucknow and the office was directed for service of notice to the opposite party of execution case and five days' time was granted on 12.12.2019 and the matter was fixed on 13.12.2019 and thereafter on 18.12.2019 and on 18.12.2019, the office again informed that notice could not be served on the respondent of the execution case and some more time was prayed, but the learned District Judge passed order by issuing writ of possession and also directed to issue D.O. to S.S.P., Lucknow to ensure the compliance of the order dated 05.12.2019, passed by this Court in Petition No.31167(M/S) of 2019 (supra).
After considering the arguments of the learned counsel for the parties and going through the pleading and the contents of the Petition No.31167(M/S) of 2019 (supra), order dated 05.12.2019, passed by this Court in the aforesaid petition and the orders passed by the District Judge, Lucknow on 11.12.2019 & 18.12.2019 (page 52 & 54) and the objections of petitioners (appended with the petition), it is evident that the impugned order was passed without giving any opportunity of hearing to the petitioners as their objections are pending in the execution case and the respondent No.1 already filed reply to their objections, but without deciding the objections of petitioner, the execution proceeding was ordered by the District Judge, Lucknow on the wrong interpretation of the order dated 05.12.2019 passed by this Court Accordingly, the petition is allowed with the consent of the counsel for parties. The order dated 18.12.2019 passed by the District Judge, Lucknow in Execution Case No.804 of 2019 is set aside The learned District Judge, Lucknow is directed to decide the objections of the petitioners forthwith and also conclude the proceeding of execution case in question, expeditiously, within a period of six weeks from today without giving any adjournments except unavoidable to any of the parties after giving opportunities of hearing to the parties.
Order Date :- 25.12.2019 S. Shivhare