Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 5586 of 2019 Petitioner :- Mohan And 2 Others Respondent :- B.N Public School Deoria And Another Counsel for Petitioner :- Rahul Kumar Singh, Narayan Dutt Shukla Counsel for Respondent :- Ved Byas Mishra
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri R.C. Singh, learned Senior Advocate, assisted by Sri Rahul Kumar Singh, learned counsel for the defendants-petitioners and Sri Ved Byas Mishra, learned counsel for the plaintiffs-respondents.
This petition under Article 227 of the Constitution of India has been filed praying for the following relief:-
"that this Hon'ble Court may be pleased to call for the record and quash the entire proceeding in execution case no.3/2016, in Small Cause Suit No.7/2014 pending in the court of Additional District Judge F.T.C. Court No.2 including order dated 29.5.2019 (Annexure No.11) and order dated 6.7.2019 (Annexure No.13), passed by Additional District F.T.C. Court No.2 Deoria, otherwise the applicants would suffer irreparable loss and injury"
Learned counsel for the petitioners submits that the application 44 Ka filed in Misc. Case No.1 of 2016 has been arbitrarily rejected by the Additional District Judge F.T.C.-2 by the impugned order dated 06.07.2019.
No other point has been argued before me.
Learned counsel for the plaintiffs-respondents supports the impugned order.
I have carefully considered the submissions of learned counsels for the parties.
Undisputedly, the SCC Suit No.07 of 2014 (B.N Public School Deoria and another Vs. Mohan and 2 Others) filed by the plaintiffs-respondents was decreed by the judgment dated 27.10.2015, passed by the Additional District Judge/Judge Small Cause Court, Court No.8, Deoria, and the defendants-tenants/petitioners were directed to vacate the disputed accommodation and also to pay the decretal amount. Against this judment, the defendants-tenants/petitioners had not filed any appeal or revision instead they filed an application dated 31.3.2016/01.04.2016, under Section 151 C.P.C. before the Judge Small Cause Court, Room No.9, Deoria for setting aside the aforesaid judgment dated 27.10.2015, passed in SCC Suit No.07 of 2014. The aforesaid application under Section 151 C.P.C. was dismissed by the court below by order dated 04.04.2016 as not maintainable. Against this order, the tenants-petitioners filed a petition being MATTERS UNDER ARTICLE 227 No. - 2726 of 2016 (Mohan and 2 Others Vs. B.N Public School Deoria and another) which was dismissed by this Court by order dated 22.04.2016 on the ground of alternative remedy of revision under Section 25 of Provincial Small Cause Courts Act, 1887. Thereafter the defendants-tenants/petitioners filed SCC Revision Defective No.98 of 2016 (Mohan and 2 Others Vs. B.N Public School Deoria and 2 Others) which was dismissed by this Court by Order dated 18.01.2019. In the mean time, since the judgment and decree was not complied by the defendants-tenants/petitioners, therefore, the plaintiffs-respondents filed an Execution Case No. 3 of 2016. In the said Execution Case, the defendants-tenants/petitioners filed an application 4 Ga, dated 06.04.2016, under Section 47 of the Civil Procedure Code which is stated to be pending. Thereafter the petitioners filed an application 40 Ga, which was rejected by the Additional District Judge F.T.C.-02 by order dated 29.05.2019 making observation that the petitioners have not made any averment in paragraphs 5 of the application under Section 47 C.P.C. that the disputed property is not identifiable. It was also observed that pursuant to the Execution Case No.3 of 2016, the disputed accommodation has been vacated and possession of the disputed accommodation has been given to the decree-holders. Thereafter the tenants-petitioners filed an application dated 05.07.2019 for amendment which was registered as Misc. Case No.1 of 2016 in Execution Case No.03 of 2016. This amendment application (paper no.44 ka) has been rejected by the impugned order dated 06.07.2019. After making detailed discussion, the court below found that the Amendment Application has been filed merely to delay the execution of the decree and also recorded a finding that possession of the suit property has already been given to the plaintiff-decree holders/respondents in satisfaction of the decree and merely arrears of rent remain to be recovered. No illegality could be pointed out by the learned counsel for the petitioners in the impugned orders.
For the reasons stated above, I do not find any illegality in the impugned orders. Petition is devoid of merit and, therefore, deserves to be dismissed.
In view of the aforesaid, the petition is dismissed.
Order Date :- 26.7.2019/vkg