Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 6305 of 2019 Petitioner :- Siya Ram And Another Respondent :- Arun Kumar And 2 Others Counsel for Petitioner :- Arvind Srivastava Iii Hon'ble Manoj Kumar Gupta,J.
The petitioners are seeking setting aside of order dated 20.1.2017, by which the application for restitution of possession filed by respondents no.1 and 2, successor in interest of the original defendant of Original Suit No.309 of 1989, was allowed. The petitioners had instituted the above referred suit for specific performance of an alleged agreement for sale. It was decreed exparte on 10.8.1990. In pursuance thereof, the petitioners succeeded in obtaining sale deed dated 27.11.1991 and possession through the executing court. Respondents no.1 and 2, who are heirs and legal representatives of the original defendant, filed application under Order 9 Rule 13 CPC, which was allowed on 16.3.2007. The petitioners filed recall application for recall of order dated 16.3.2007. The recall application was rejected as not maintainable by order dated 28.9.2012. Aggrieved thereby, the petitioners filed a revision before the District Judge, which is pending consideration. Respondents no.1 and 2 filed an application for restitution of possession, as exparte judgement passed in the suit had since been set aside. It was allowed by the trial court by order dated 20.1.2017. The petitioners challenged the said order by filing Revision No.12 of 2017. Initially, an interim order was granted in favour of the petitioners in the said revision, but subsequently, it was vacated. According to the petitioners, a recall application filed by them for recall of the order by which stay order was vacated is pending before the revisional court. In the meantime, the trial court passed an order issuing Dakhal Parwana to implement the order dated 20.1.2017, whereby the application for restitution of possession was allowed. The petitioners filed objection against the same on 24.7.2019. The trial court by order dated 24.7.2019 has rejected the objections filed by the petitioners and has allowed the application filed by the defendants. Aggrieved thereby, the instant petition has been filed.
Counsel for the petitioners submitted that the revision filed by the petitioners against the order of the trial court dated 28.9.2012 rejecting the recall application is still pending. It is urged that in such circumstances, the order of restitution should remain in abeyance.
Concededly, against the order directing restitution of possession dated 20.1.2017, the petitioners filed a revision, which is still pending. Consequently, it is not open to the petitioners to simultaneously challenge the same before this Court. In the revision, initially there was stay in favour of the petitioners, but it had been vacated by the revisional court. The order vacating the interim order is not under challenge before this Court. The subsequent order dated 24.7.2019 now passed is only reiteration of the direction given in the main order dated 20.1.2017, which, as noted above, is already under challenge in revision filed by the petitioners but wherein there is no interim order in their favour.
Having regard to the above facts, no case is made out to interfere with the impugned orders in exercise of supervisory power under Article 227 of the Constitution. The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J) Order Date :- 26.8.2019 SL