Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 1233 of 2019 Petitioner :- Salimuddin And 2 Others Respondent :- Additional District And Sessions Judge/ F.T.C. Hapur And 2 Others Counsel for Petitioner :- Virendra Kumar Jaiswal,Ashok Kumar Singh Counsel for Respondent :- Anupam Kumar
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioners and Sri Anupam Kumar, learned counsel appearing for the respondent no. 3.
Present writ petition has been filed seeking setting aside of the order dated 19.8.2017 passed by the respondent no. 2 in Execution Case No. 04/2016 and the order dated 5.12.2018 passed by the respondent no. 1 in Civil Revision No. 162/2017.
By the impugned order dated 19.8.2017 the application Paper no. 4Ga filed by the plaintiff decree holder for execution of the decree dated 1.10.1988 passed in Original Suit No. 446 of 1988, Abdul Hakim and others Vs. Salimuddin and others for permanent injunction was allowed and the objections filed by the defendant petitioners herein were rejected. The revision filed against the same was also dismissed.
The suit was filed for permanent injunction by the plaintiffs claiming that they are members of Intjamia Committee and are looking after the property situated in eastern side of Kabristan Arazi no. 1297 and 1298 marked in the map annexed with the plaint. It is not in dispute that a compromise had taken place whereby it was provided that 7 feet wide passage will be left and accordingly the decree was prepared. The execution case was filed in the year 2016 for execution of the said order passed in the year 1988 which is on the basis of the compromise dated 7.1.1994 on the ground that now the passage is being encroached upon by the defendants therefore, the decree be executed. An objection was filed that provisions of Order 1 Rule 8 CPC and Order 23 Rule 3-B CPC were not complied with. The application was rejected by the Execution Court on the ground that only technical objection regarding procedural flaw is being raised whereas the compromise in substance is not in dispute. It was observed by the Execution Court that although apparently there is no proof of issuing notice to the affected parties, however, since the decree in substance is not in dispute therefore, the same can be executed. The revision filed against the same was also dismissed.
Submission of learned counsel for the petitioners is that the objection before the trial court was that no notice was issued to the affected persons and there is no compliance of Order 1 Rule 8 read with Order 23 Rule 23- B CPC.
Per-contra, learned counsel appearing for the respondent no. 3 has produced a certified copy of the notice Paper no. 97Ga issued under Order 1 Rule 8 read with Order 23 Rule 3 B (2) CPC to indicate that notice was issued to the entire community of Bhatiyara Biradari Musalman Hapur, Ghaziabad. He submits that in pursuance thereof the third party has objected and such objections were recorded, therefore, no interference is warranted in the impugned order.
The certified copy of the notice produced before this Court is taken on record.
I have considered the rival submissions and have perused the record.
I find that at page 26 of the paper book there is an order dated 7.12.2014 which clearly indicates that a third person has filed an application Paper no. 98Ga and 107Ga which was rejected clearly holding therein that none of the persons from Bhatiyara Committee has come forward to challenge the same. It was specifically recorded that objection of the third party was rejected on the ground that there is no evidence that such compromise is contrary to the interest of the Bhatiyara committee and as such compromise was approved that made part of it.
In such view of the matter, I do not find any substance in the objection raised by the petitioners particularly when the substance of the compromise is not in dispute to which the petitioners herein were party.
This writ petition is devoid of merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 30.4.2019 p.s.