Court No. - 38
Case :- MATTERS UNDER ARTICLE 227 No. - 1388 of 2019 Petitioner :- Gopi Respondent :- Lakshmi Chand Gudia And 11 Others Counsel for Petitioner :- Varun Dev Sharma,Aniruddh Tiwari
Hon'ble Jayant Banerji,J.
Heard Shri Rajiv Kumar holding brief of Shri Aniruddh Tiwari, learned counsel for the petitioner.
This petition has been filed for setting aside the order dated 27 November 2018 passed by the Additional Sessions Judge/FTC, Court No.2, Hathras in Civil Revision No.30 of 2013 (Gopi Vs. Lakshmi Chand Gudia & Ors.) as well as the order dated 27 April 2013 passed by the Civil Judge (Junior Division), Hathras in Execution Case No.3 of 2013 (Kailash vs. Gopi). The petitioner has also sought a direction to the court below to decide the recall application dated 7 March 2013 exhibited as paper no.115 E (ga), after calling the second Amin report in the Execution Case No.3 of 2013.
Learned counsel for the petitioner submits that the order dated 27 April 2013 passed by the Civil Judge (Junior Division) in Execution Case No.3 of 2013 is wholly erroneous and wrong inasmuch an area more than the area that was specified in the plaint map was handed over by the court bailiff to the decree holder. Learned counsel has submitted that the application dated 7 March 2013 that has been enclosed as Annexure-3 to the writ petition may be decided afresh. It is further his contention that the revisional court without examining this important aspect of the matter has cursorily rejected the revision and, therefore, this petition has been filed.
A perusal of the order dated 27 April 2013 passed by the executing court reveals that in reply to the application dated 7 March 2013 [Paper No.115 E(ga)] filed by the judgment debtor/petitioner, the decree holder had filed his objection which was marked as Paper No.116-E(ga) in which it has been stated that the report of the court bailiff was disposed of and no objection on that was filed by the judgment debtor and there is no provision for recall of that order inasmuch as the report of the court bailiff cannot be re-considered. The executing court noticed that the decree was wholly satisfied inasmuch as the decree holder was put in possession by the court bailiff over the suit property. Accordingly, the application of the judgment debtor was disposed of.
Thereafter, the revision was filed by the judgment debtor in which the heirs of the judgment debtor were also substituted following his death. The revisional court has dealt at length with the case before it. The revisional court has observed that the boundaries of the disputed property shown in the decree and in the execution proceedings are identical and description is given in the warrant of possession. The second appeal of the judgment debtor was dismissed by the High Court and the Special Leave Petition filed by him before the Supreme Court was also dismissed. The court below has observed that the judgment debtor had also not specified how much additional area was handed over by the court bailiff to the decree holder which is in excess of the property in dispute. The court below has observed that the report of the court bailiff was considered and disposed of on 23 March 2012 after hearing the parties concerned and thereafter the warrant of possession was issued by the executing court. The judgment debtor was afforded adequate opportunity to present his case and that the executing court had correctly passed the order dated 27 April 2013 and has, therefore, rejected the revision.
Learned counsel for the petitioner has not been able to demonstrate any illegality in the judgment passed by the revisional court or by the executing court. The record as available in the paper-book has been perused and there is no reason to interfere in the orders. This petition has been filed in the name of a deceased person despite the fact that his heirs were substituted in the court below. Once it is clear that the executing court had heard the parties on the report of the court bailiff and there is no material worth its name to demonstrate the objection of the judgment debtor, there was no occasion for the revisional court to interfere in the matter.
This petition is, accordingly, dismissed.
Office is directed to communicate this order to the court below within a period of fifteen days from today.
Order Date :- 28.2.2019 SK (Jayant Banerji, J.)