Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 4702 of 2019 Petitioner :- Babu Lal Respondent :- First Additional District Judge And 3 Others Counsel for Petitioner :- Krishna Chandra Pandey Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Sri Ravi Prakash Srivastava, learned counsel appearing for Degree College Association submits that in other two connected matters, which are pending today, he is representing the Degree College Association and he had no knowledge of this case and as such, he could not file his vakalatnama, however, since he is appearing in the other two cases arising out of same proceedings, therefore, he may be permitted to represent the case on behalf o respondent no. 4.
Prayer is granted.
Heard learned counsel for the petitioner as well as Sri Ravi Prakash Srivastava, learned counsel for the respondent no. 4-Degree College Association and have perused the record.
Present petition has been filed challenging the impugned order dated 29.3.2019 passed by the respondent no. 1 in Execution Case No. 5 of 1981 in respect of house of the petitioner as House No. 1640/1 ward no. 8 Bhatwa Ki Pokhari, Mirzapur.
Sri Ravi Prakash Srivastava, learned counsel appearing for Degree College Association has produced a copy of the orders passed in two other cases and submits that the controversy involved in the present petition is similar. He, however, fairly submits that in both the cases listed today, which have already been disposed of, the petitioners have filed objection/application before the Court below itself regarding the order impugned herein. He, therefore, submits that in view of the order already passed by this Court, the present petitioner may also be relegated to the Court below to avail the same remedy. He has placed copy of the order dated 28.5.2019 passed in Matter under Article 227 No. 4438 of 2019 (Phool Chand Gupta and another vs. Degree College Association Musaffarganj and an other).
The said judgement dated 28.5.2019 is quoted hereinunder:-
"Heard Sri Azad Khan, learned counsel for the applicants. Sri Ravi Prakash Srivastava, learned counsel appears for the decree holder.
This application has been filed for setting aside the order dated 29.3.2019, passed by the Ist Additional District Judge, Mirzapur in Execution Case No. 5 of 1981 arising out of O.S. No. 294 of 1968 (Degree College Association Vs. Shiv Narain Pandey and others).
The contention of the learned counsel for the applicants is that the applicants have filed objection under Order 21 Rule 97 CPC before the court below on 18.8.2018 which was registered as Misc. Case No. 39 of 2018 and 37 of 2018 respectively. Pursuant to an application for transfer of the case, the Execution Case No. 5 of 1981 was transferred from the court of Special Judge (SC/ST), Mirzapur to the court of Ist Additional District Judge, Mirzapur but, other miscellaneous case including the aforesaid miscellaneous application Nos. 37 and 39 of 2018 were not transferred and the order dated 29.3.2019 was passed, whereby, the vacant possession of the property in dispute was directed to be given to the decree holder by issuance of memorandum of possession. It is the contention of learned counsel for the applicants that their valuable rights are affected.
However, it has been pointed out by Sri Ravi Prakash Srivastava, learned counsel appearing for the respondent-decree holder that the applications have been individually filed by the applicants before the court below for staying of the order impugned dated 29.3.2019. This fact is not rebutted by the learned counsel for the applicants. Photo copies of these two applications bearing date of 2.5.2019 have been passed on to the Court by Sri Ravi Prakash Srivastava which are taken on record.
Since, the learned counsel for the applicants acknowledges that the aforesaid applications are pending, it would be appropriate to direct the court below to take expeditious decision on the aforesaid two applications dated 2.5.2019.
This application is, accordingly, disposed of with the aforesaid observations."
In such view of the matter, I do not find any good ground to take a different view of the matter.
Accordingly, present petition stands disposed of with liberty to the petitioner to file objection/application as has been done by the petitioners therein in the other connected matters listed today, which have already been decided.
No order as to costs.
Order Date :- 30.5.2019 Abhishek