Mohammad Suleman vs Sub Divisional Magistrate, Roorkeee & Others

Alok Singh, J

1) By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 12.03.2019 passed by the Sub Divisional Magistrate, Roorkeee / respondent no.1 on the application dated 17.01.2019 filed by respondent no.4-Smt. Gufrana.

2) Brief facts of the case are that the petitioner purchased an agricultural land situated in Khata no.477 Khasra no.77 measuring 0.167 hectare by way of a registered sale deed dated 01.08.2017; accordingly, respondent no.2 gave possession of the said land to the petitioner; thereafter, respondent no.2 filed an original suit no.106/2017 for cancellation of the sale deed dated 01.08.2017 in the court of Civil Judge (J.D.), Roorkee; vide order dated 15.09.2018, the trial court decreed the suit ex-parte and cancelled the sale deed dated 01.08.2017; and feeling aggrieved, petitioner filed an appeal before the Additional District Judge, Roorkee, which is still pending for consideration along with an application under Section 5 of the Limitation Act.

3) On the basis of decreetal order dated 15.09.2018, respondent no.2-Ajmal sold the land in question to her mother Smt. Gufrana (respondent no.4 herein) and also moved an application before the SHO, Manglore with a request to remove the petitioner from the land in question; thereafter, the petitioner moved an application before the SDM, Roorkee/respondent no.1 requesting him to initiate legal proceedings against the private respondents; on the application of the petitioner, respondent no.1, vide order dated 24.12.2018, directed the SHO, Manglore, Roorkee to enquire into the matter and directed the parties to maintain status-quo during the pendency of enquiry; respondent no.4-Smt. Gufrana moved an application before the respondent no.1 on 17.01.2019 alleging therein that the petitioner got the order of status-quo on false facts and he is misusing the order dated 24.12.2018; on the application dated 17.01.2019 moved by respondent no.4, respondent no.1 passed the impugned order dated 12.03.2019 directing the SHO, Manglore that if the possession of the opposite party is on the spot, then the possession be delivered to the applicant-Gufrana pursuant to court's order.

4) Ex-parte decree passed by the trial court is under challenge before the Additional District Judge/lower appellate court in an appeal, which is still pending along with an application under Section 5 of the Limitation Act.

5) In the present case, the decree was passed by the Civil Judge (J.D.), Roorkee under Order 21 CPC, therefore, as per Order 21 CPC, the power to execute the decree shall lie with the same court, who has passed the decree. The S.D.M. has no authority to touch the decree passed by the trial court. It means that the SDM and his clerk has nothing to do with the ex-parte decree passed by the trial court. Without the knowledge of District Magistrate, the S.D.M. has passed the impugned order. The District Magistrate, Haridwar is directed to call for explanation of the S.D.M., Roorkee, who has passed the impugned order dated 12.03.2019, latest by 15th May, 2019.

6) In view of above analysis in this matter, this Court is of the view that the impugned order deserves to be set aside and is accordingly set aside. The parties shall maintain status quo with regard to the disputed property, till the lower appellate court decides the civil appeal no.01/2019. Present writ petition is disposed of as above. No order as to costs.

7) Let a copy of this order be sent to the District Magistrate, Haridwar for compliance.