Naseer and Others vs Smt. Nooran and Another

Bharati Sapru, J.—I have heard learned Counsels for both sides at length.

Pleadings have been exchanged and this matter is being disposed of at the stage of admission itself.

The present writ petition has been filed by the Petitioner being aggrieved by an order dated 12.12.2008 (Annexure-5) passed by the court below by which an objection (Paper No. 37 Ga-2) filed by the Petitioner was rejected by the Civil Judge (Junior Division), Banda in Execution Case No. 15 of 1985. The Petitioner thereafter filed revision No. 105 of 2008 which has also been dismissed by the court below by its order dated 28.2.2009.

It is the contention of the Petitioner that their application under Order 21 Rule 97 CPC should have been decided first before an Executing Court as they are persons other than the judgment debtor within the meaning of Rule 99 Order 21 Code of Civil Procedure

The facts of the case are that the proceedings for execution of a decree passed in Smt. Nooran v. Ahmadi Fakeeran 1982 6 S.C.C.were going on. The suit itself had been filed mainly with the plaint allegations that the plaint allegations that the Plaintiff was the owner of the house in dispute, which had been purchased by her on 28.1.1981 and Smt. Ahmadi i.e. Defendant/Respondent No. 2 was a tenant, who did not pay rent from 28.1.1981 and, therefore, a demand was raised against her for arrears of rent and also to vacate the premises in dispute. This suit was decreed exparte by way of a judgment dated 17.8.1982. The said decree was sought to be put into execution.

On 9.7.1985 an application under Order 9 Rule 13 CPC was filed by the Defendant, Ahmadi for setting aside the ex�parte judgment and decree dated 17.8.1982. This was allowed on 7.9.1985 thereafter on 11.11.1985 an Execution Case No. 3 of 1985 was dismissed by the executing court for non-prosecution but this order was not challenged in any court. Thereafter, another S.C.C. Revision No. 70 of 1998 was filed by the decree holder against the order dated 7.9.1985 which was allowed by the District Judge, Banda on 29.11.1985. Thereafter, an application for execution of the aforesaid decree passed in S.C.C. Suit No. 6 of 1982 was filed by the decree holder, which was registered as Execution Case No. 15 of 1982.

Subsequently, a writ petition was also filed by Ahmadi being Writ Petition No. 19638 of 1985, which was ultimately dismissed by this Court by its judgment dated 22.11.2007. It may be noticed here that the present Petitioner Nos. 1, 2 & 3 are all sons of Ahmadi, who was the tenant, who was sought to be evicted from the premises in dispute. This is the first fact, which has been noticed in the order dated 12.12.2008 passed by the trial Court on the application moved by the Petitioners under Order 21 Rule 97. 8. The second reason given by both the courts below for rejecting the application under Order 21 Rule 97 is that after the dismissal of the Writ Petition No. 19638 of 1985, neither the present Petitioners nor their mother, Smt. Ahmadi, ''the judgment debtor'' moved to any higher court against the said judgment and that judgment dated 22.11.2007 became final against the parties.

Both the courts below in the impugned orders have noted that the revisions filed by the Petitioner were filed only to frustrate and delay the execution proceedings and the objections made by them under Order 21 Rule 97 were not valid objections because it could not be said that the Petitioners were strangers to the eviction proceedings as they were the sons of Ahmadi, the judgment debtor.

Learned Counsel for the Petitioner has sought to argue strenuously that the objections filed by the Petitioners ought to have been considered before proceeding with the execution matter.

On the other hand, learned Counsel for the Respondent has contended that it was not necessary in the facts and circumstances of the case as it was well established from the record and facts that the Petitioners were not strangers to the case but were the sons of the original judgment debtor, Ahmadi and secondly he contended that the judgment of this Court in the earlier writ petition dated 22.11.2007 had also become final between the parties as neither the Petitioners nor their mother appealed against the said judgment to any higher Court.

Having heard learned Counsels at length, I am of the opinion that both the orders passed by the court below are well discussed while disposing of the application under Order 21 Rule 97 and in view of the recorded facts and circumstances of the present case the court has rightly come to the conclusion that the Petitioners were not strangers to the case but were well aware of the entire proceedings as they were the sons of the judgment debtor. Their objections have, therefore, been rejected rightly. In my opinion there is no justification to vary the two impugned orders passed by the court below. The orders passed by the court below are justified in the facts and circumstances of the case. They are, therefore, confirmed by this Court.

The writ petition is devoid of merit. It is dismissed.

The Execution Case now proceed in accordance with law.