Court No. - 10
Case :- WRIT - C No. - 27921 of 2018 Petitioner :- Yatesh Chandra Respondent :- State Of U.P. And 13 Others Counsel for Petitioner :- Vivek Dubey,Ashok Kumar Upadhyay Counsel for Respondent :- C.S.C.,Ankit Prakash
Hon'ble Vikram Nath,J.
Hon'ble Daya Shankar Tripathi,J.
Heard learned counsel for the petitioner, Sri Harish Chand Dubey, learned Standing Counsel for the State-respondents, Sri Ankit Prakash and Sri Manas Bhargav, learned counsel representing respondent no.8.
Inter se parties a suit for partition was filed by the respondent no.8 registered as O.S. No.200 of 2003 (Govardhan Nath Vs. Sri Dhruv Narain @ Bao & 7 others) in the court of Civil Judge, Sr. Division, Mathura. The present petitioner- Yatesh Chandra is impleaded as defendant no.5 in the said suit. The Additional Civil Judge, Sr. Division, Court No.4 vide judgment and order dated 08.12.2017 decreed the suit. A preliminary decree was also prepared on 21.12.2017, which is part of Annexure-3 to the petition. Against the judgment and decree of the trial court, the sole petitioner, Yatesh Chandra along with two brothers Suresh Chandra and Pravesh Chandra filed an appeal registered as Civil Appeal No.58 of 2018 in the court of District Judge, Mathura. The said appeal was filed in March, 2018 and is said to be still pending without any interim orders.
In the meantime, it appears that respondent no.8, i.e. plaintiff of the suit moved an application before the Collector/ Additional Collector, Hathras, praying for delivery of charge as per the judgment and order dated 08.12.2017. On the said representation, the Additional Collector (Revenue and Finance, Hathras) directed the Deputy Collector to take appropriate action after obtaining report from the District Government Counsel, Civil. It appears that thereafter the Deputy Collector called for an opinion from the District Government Counsel, Civil and on 27th July, 2018 started the process for delivery of charge to the respondent no.8.
These two documents have been filed as Annexure nos.6 and 7 to the petition. The submission advanced on behalf of the petitioner is that the District Administration would have no jurisdiction to meddle with the proceedings of the civil court. The respondent no.8, the plaintiff in the proceedings before the Civil Court after the suit having been decreed, ought to have initiated execution proceedings and it is only upon a writ (parwana) being issued by the executing court for delivery of charge or for implementation of the judgment and decree, the same would have been handed over to the plaintiff decree holder but not at the instance of the Officers of the District Administration.
In reply, learned counsel for the respondent no.8 submitted that the handing over of the charge is strictly in conformity with the judgment and decree of the civil court and the petitioner for ulterior motives and reasons wants to continue further beyond his period and is only interested some how or the other in delaying the execution proceedings and in continuing with the charge of the temple. However, learned counsel for the respondent no.8, the plaintiff to the suit has not been able to show us that any execution proceedings were initiated by the plaintiff decree holder.
Any judgment or decree of a civil court is to be executed in accordance to law i.e. as per the provisions contained in the Code of Civil Procedure, 1908 relating to execution in particular Order XXI of the Code. Administrative Authorities would not have any jurisdiction to execute the decree of civil court upon a misc. application being filed by the Decree Holder. As such the impugned orders cannot be sustained in law.
Accordingly, both the impugned orders dated 26th July, 2018 and 27th July, 2018 are quashed being without jurisdiction.
Considering the facts and circumstances of the case and also the statement given before us that the defendant no.8 i.e. plaintiff decree holder will move an appropriate application for execution before the executing court along with certified copy of this order within 10 days from today, we grant liberty to respondent no.8 to file an appropriate execution application along with certified copy of this order, and further direct that the executing court would proceed to take appropriate decision on the said execution application, strictly in accordance with law, expeditiously preferably within a period of two months on the outer side. It goes without saying that the petitioner will co- operate in the execution proceedings along with his brothers and other defendants.
Petition is accordingly allowed as above.
Order Date :- 23.8.2018/Ashutosh (Daya Shankar Tripathi,J.) (Vikram Nath,J.)