1. Heard the learned counsel for the applicant and the learned AGA for the respondent no.1.
2. The learned counsel for the applicant submitted that the learned Executive Magistrate had passed the absolute order dated 6.7.2009 against which the criminal revision no. 131 of 2009 is pending in the court of Session. During pendency of the revision, the respondent no. 2 moved an application on 30.7.2009 before the Executive Magistrate for enforcement of the order dated 6.7.2009. The learned Magistrate passed an order on the same day directing removal of the exhaust and construction of the chimney. The learned counsel for the applicant further submitted that no show cause notice, as required by section 141 CrPC has been served on the applicant before enforcement of the order dated 28.5.2009 as well as the order dated 6.7.2009. The learned counsel further submitted that without giving the requisite notice under section 141 CrPC the learned Executive Magistrate had no jurisdiction to pass the enforcement order dated 30.7.2009.
3. Notice on behalf of respondent no.1 has been accepted by the AGA. Issue notice to respondent no.2. Counter affidavit may be filed within four weeks and rejoinder affidavit, if any, within two weeks thereafter. List after six weeks.
4. Till the next date of listing, operation of the impugned order dated 30.7.2009 passed by the Additional City Magistrate VII, Kanpur Nagar in Case No. 4 of 2009 Devendra Kumar Gupta vs. Virendra Kumar Gupta under section 133 CrPC, police station Nazirabad, District Kanpur Nagar, shall remain stayed.
Order Date :- 1.2.2010 RKSh