It appears that a suit no. 203 of 1983 was filed for specific performance on the basis of the agreement to sell dated 11.9.1980. The suit was decreed on 17.9.1988 in favour of Suleman and Iliyas Khan. When the execution proceeding has been initiated the plaintiffs filed a execution case no. 3 of 1988. It is the case of the petitioners that on 17.1.1990 Iliyas Khan moved an application before the court that sale deed be executed in favour of Suleman Khan only. In pursuance thereof the court vide order dated 20.2.1990 has executed the sale deed in favour of Suleman Khan. On 13.4.1990 Iliyas Khan moved an application stating there in that he has not moved any application dated 17.1.1990 and has also not signed the Vakalatnama. He made a prayer to the court that the application as well as Vakalatanama may be kept in a sealed cover. The execution court directed the office to keep the application and Vakalatnama in a sealed cover. Ultimately, the application dated 17.1.1990 moved by Iliyas Khan has been dismissed on 8.3.1991 for want of prosecution. It appears that the name of Suleman Khan has been mutated on 19.5.1990. He has executed a sale deed of part of portion of the property in dispute on 19.7.2000 and for part of the portion on 3.7.2001 in favour of the petitioners. Iliyas Khan filed a suit no. 91 of 2010 (Iliyas Vs. Suleman and others) for the cancellation of the sale deed dated 20.2.1990 and the sale deed dated 3.7.2001. He however has not made prayer for the cancellation of another sale deed dated 19.7.2000. It also appears that Iliyas moved an application before the execution court for the recalling of the order dated 8.3.1991.
Learned counsel for the petitioners submitted that the suit is barred and, therefore, an application under Order 7 Rule 11 C.P.C. has been moved which has been rejected by the impugned order. The application has been rejected on the ground that the written statement has not been filed by the defendant and the claim will be considered after filing of the written statement. Learned counsel for the petitioners submitted that in case if the application moved by the respondent for recalling of the order dated 8.3.1991 is allowed then he has a right to raise all the pleas raised in the present suit in the execution proceeding and in case if the application is rejected then also he has no right to file a suit for cancellation of the sale deed.
The submission of learned counsel for the petitioners has substance which requires consideration.
Sri N.C. Tripathi, Advocate filed his Vakalatnama on behalf of respondent no. 1. He prays for and is granted four weeks time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter.
List in the week commencing 18.7.2011.
Till the next date of listing, the proceeding in original suit no. 91 of 2010 (Iliyas Khan Vs. Suleman Khan and others) pending in the court of First Civil Judge (Junior Division), Bulandshahar shall remain stayed.
Order Date :- 16.5.2011 OP