JUDGMENT Dilip Gupta, J.
1. This petition has been filed to assail the order passed by the leaned District Judge, Gorakhpur on 25th January 2008 by which he has recalled Execution Case No. 1 of 2007 and Misc. Case Nos. 17 of 2007 and 1 of 2007 from the Court of Civil Judge (Senior Division) and transferred them to the Court of Judge, Small Cause Courts where they were earlier pending.
2. The records of the writ petition indicate that SCC Suit No. 8 of 2006 had been filed by respondent Nos. 2 and 3 in the present petition against respondent No. 4 for eviction and recovery of arrears of rent. The suit was decreed on 5th October 2006. The decree holders filed Execution Case No. 1 of 2007 before the Judge, Small Cause Courts, which was Executing Court. The petitioner also filed an application under Section 151 of the Code of Civil Procedure for recalling the Judgment and order dated 5th October 2006 and this was registered as Misc. Case No. 1 of 2007. The records of the writ petition also indicate that a communication was sent by the then Executing Court to the learned District Judge for transferring the case from his Court and on that letter the learned District Judge passed the following order on 7th January 2007:
Recall Misc. Case No. 17/07, Misc. Case No. 1/07 and Execution Case No. 01/07 from the Court of JSCC and transfer them to the Court of Civil Judge (S.D.) Gorakhpur for disposal according to law.
3. It transpires that Sri B.K. Singh, Judge, Small Cause Courts, was subsequently transferred to District Sant Kabir Nagar and so a communication was sent by plaintiff-decree holder that as the Executing Court had been transferred and the learned Civil Judge (Senior Division), Gorakhpur was busy with the work of his own Court, it would be in the interest of justice that the matter be sent back to the Judge, Small Cause Courts so that it could be decided expeditiously. On the said application, learned District Judge recalled the Execution Case and the Misc. Cases and transferred them back to the Judge, Small Cause Courts since the Civil Judge (Senior Division) was busy with the work of his own Court. It is this order that has been impugned by the petitioner.
4. Learned Counsel for the petitioner submitted that the said order could not have been passed by the learned District Judge on the communication sent by the decree holder and in support of his contention, he has placed reliance upon the decision of this Court in Kailash Jaiswal v. State of U.P. and Ors. 2004 (5) AWC 5030.
5. In the present case, as noticed hereinabove, learned District Judge had initially transferred the cases from the Court of Judge, Small Cause Courts to the Court of Civil Judge (Senior Division) on the communication sent by the Court. Subsequently, the Presiding Officer of the Judge Small Cause Courts was transferred to Sant Kanbir Nagar. The plaintiff-decree holder than pointed out this fact and also the fact that the Civil Judge (Senior Division) was busy with the work of his own Court and so the learned District Judge after noticing that the Civil Judge (Senior Division) was a busy Court, in his discretion, has thought it proper to recall these two Misc. cases and the Execution Case from the Court of Civil Judge (Senior Division) and transferred them back to the Court of Judge, Small Cause Courts from which Court they had been earlier transferred.
6. Learned Counsel for the petitioner has placed reliance upon the decision of this Court in Kailash Jaiswal (supra). What was emphasized in this case was that the communication for transferring the cases had been sent by a person who was not a party to the suit and while dealing with the Rules 29 and 30 of the General Rules (Civil) and Section 24 of the Code of Civil procedure, observed as follows:
It is clear that transfer order could be passed on an application of a party after notice/hearing such of them as desired to be heard or on its own motion by the District Judge. The present case is not a case in which suo moto order exercising general power of transfer was passed. The impugned order was passed on a letter of Deputy Commissioner (Administration), Trade Tax, Gorakhpur, who is not a party to the suit. He did not file any application as required in the procedure prescribed. Thus, it is clear that impugned transfer order was not passed in accordance with law. In the facts and circumstances of the case, impugned order is vitiated in law.
7. In the present case, it is not in dispute that the communication was sent by a party to the suit namely plaintiff No. 1. The District Judge has noticed in his order that the Court of Civil Judge (Senior Division) was a busy Court and, therefore, in his discretion, recalled the cases from the said Court and transferred it to the Court of Judge, Small Cause Courts. It needs to be mentioned that earlier the cases had been transferred from the Court of Judge, Small Cause Courts, but the Judicial Officer who had expressed his inability to hear the cases had been transferred. The District Judge was justified, in the facts and circumstances of the case, in recalling the cases and transferring them.
8. Even otherwise, I am not inclined to exercise the discretionary jurisdiction under Article 226 of the Constitution of India at the behest of the petitioner who is not even a party in the suit and whose endeavor may be to prolong the Execution of the decree, particularly, when he has not pointed out any prejudice that may be caused.
9. The writ petition is, accordingly, dismissed. No order as to costs.