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Judgment
A.N. Varma, J.—Through the instant writ petition, the petitioner has assailed the order dated 2.1.2007 (Annexure No.8) passed by opposite party No.1, whereby the objection preferred under Section 47 of the Code of Civil Procedure in execution proceedings have been rejected. It has further been prayed that a writ in the nature of prohibition be issued to the opposite party No.1, whereby it may be refrained from proceeding with the execution case No.5/95 as well as confirming the auction sale held on 8.8.2005.
One Dev Kali, who was Bhumidhar of certain piece of land entered into an agreement for sale with opposite party No.2 on 24.11.1984. Rupees 20,000/ was also paid by opposite party No.2 towards advance. The sale, however, could not be materialized, as such opposite party No.2 instituted a suit for recovery of the advance amount. The said suit was decreed on 5.9.1992. It appears that opposite party No.2 could not get amount and on 15.11.1994, said Dev Kali executed a sale deed in respect of property in question in favour of the petitionerSociety. It appears that in an auction proceedings conducted on 8.8.2005, the same property was sold out to someone else. Since the opposite party No.2 could not reap the fruits of the decree in his favour, therefore, he initiated the proceedings for execution, to which objections under Section 47 of the Code of Civil Procedure were preferred by the petitioner.
The trial Court vide its judgment and order dated 2.1.2007 rejected the objections on two counts. Firstly, that the said objections were barred by limitation and secondly on merits. Against the said judgment and order the petitioner filed a revision (revision No.13 of 2007) before this Court which is pending adjudication and 2.2.2007 is the date fixed in which the petitioner himself is said to have preferred an application for withdrawal.
The impugned order has been assailed primarily on three grounds. Firstly, that the entire proceedings conducted by the executing Court are nothing else but an abuse of process of law inasmuch as the Suit itself was hit by Section 157A of U.P.Z.A. & L.R. Act, as the vendor had no salable right and the property had vested in the State free from all encumbrances. Secondly, the question of limitation has wrongly been decided by the executing Court and thirdly the petitioner being bonafide purchaser for value the property in question could not be sold out in auction proceedings.
In so far as, the pendency of revision before this Court is concerned, learned counsel for the petitioner points out that since the same is not maintainable, therefore, he has already made an application for withdrawal of the said revision.
Section 115 of the Code of Civil Procedure, 1908 as amended in its application to State of Uttar Pradesh lays down that:
�The High Court, in cases arising out of original suits or other proceedings of the value exceedings (of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fixed, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the Uttar Pradesh Civil Laws (Amendment Act, 1991, or as the case may be, the date of commencement of such notification), and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and is such subordinate Court appears:
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity; the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit;
Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this Section.
Provided further that the High Court or the District Court shall not under this Section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where:
(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
Provided also that where a proceeding of the nature in which the District Court may call for the record and pass orders under this section was pending immediately before the relevant date of commencement referred to above, in the High Court, such Court shall proceed to dispose of the same.
Explanation: In this section, the expression ''any case which has been decided'' includes any order deciding an issue in the course of a suit or other proceeding.�
I have heard Shri Mohd. Arif Khan, learned Senior Advocate, counsel for the petitioner as well as Shri Umesh Chandra Pandey, who has accepted notice on behalf of opposite party No.2.
In support of his arguments, learned counsel for the petitioner placed reliance upon a decision reported in AIR 1936 Oudh 235, Kandhai Lal v. Sheo Nath, AIR 1935 Allahabad 1016, Pokhar Singh v. Tula Ram and 1998 (16) LCD 1090, Smt. Mahmooda v. District Judge, Bahraich and Others.
As per submission of the learned counsel for the petitioner, the learned Court below has failed to appreciate the proposition laid down in the aforesaid cases.
It is not disputed on behalf of the petitioner that the valuation of the case is Rs.41,450/. The revision before this Court may not be maintainable but so far as the question of revision before the District Court is concerned that in view of Section 115 CPC is very well maintainable. Since, the aforesaid questions raised by the petitioner before this Court can very well be adjudicated upon by the District Court in exercise of its revisional jurisdiction, therefore, this Court in exercise of extraordinary jurisdiction can not dwell upon and adjudicate with respect to the same.
Since there is a remedy provided under the statute, therefore, this Court is not inclined to interfere. The writ petition, in the circumstances, is dismissed.
It is, however, provided that in case a revision is filed by the petitioner within a period of two days, the same shall be entertained by the District Court and shall be decided on merits. Any application preferred by the petitioner for grant of interim relief shall also be considered.
(Petition dismissed)