Aalam Ali Khan and Another vs Smt. Anjul and Others

Sanjay Misra, J.—Heard Sri Nipun Singh, learned counsel for the petitioners. Notice need not be issued to the respondents in view of the order being passed herein.

This writ petition is directed against the order dated 20.9.2013 passed by the Additional District Judge, Court No. 10, Muzaffar Nagar, in Civil Appeal No. 94 of 2013 (Aalam Ali Khan and others v. Smt. Anjul and others) whereby the stay application paper No. 7-C filed by the petitioners alongwith the appeal has been rejected.

Learned counsel for the petitioners has placed reliance on a decision of the Supreme Court in the case of Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, and Mool Chand Yadav and Another Vs. Raza Buland Sugar Company Limited, Rampur and Others, , to submit that when an appeal is admitted against an order then an interim protection should be given to the appellant so as to avoid any adverse civil consequences affecting the parties since the impugned order in the appeal is yet to be adjudicated by the Appellate Court.

Learned counsel states that Execution Case No. 18 of 2003 arose out of an appellate decree dated 22.5.2000 passed by the Additional Civil Judge (Sr. Division) Court No. 2, Muzaffar Nagar in Civil Appeal No. 466 of 1998. According to Sri Nipun Singh, learned counsel for the petitioners, the petitioners were not parties in those proceedings and they filed an application dated 30.5.2013 under Order 21 Rule 97 CPC, however, the said application under Order 21 Rule 97 CPC was rejected by the Executing Court by its order dated 31.7.2013 where against they preferred the instant Appeal No. 94 of 2013 and filed an application paper No. 7-C for grant of interim relief.

He states that the Appellate Court while entertaining and admitting the appeal has refused to grant any interim protection for invalid reasons. Sri Nipun Singh states that refusal to grant interim protection by the Appellate Court is only for the reason that there are many respondents in the appeal and they have to be heard. He states that this is not a ground on which the interim protection application can be refused by the Appellate Court after admitting the appeal.

Having considered the submission of learned counsel for the petitioners and perused the record, it appears that by the order dated 31.7.2013 passed in Misc. Case No. 18 of 2003 the application under Order 21 Rule 97 CPC filed by the petitioners was rejected. While dismissing the said application it was held that the petitioners are not in possession over the land in question. The Appellate Court while considering the interim application against the said judgment of the Executing Court was of the view that an ex parte interim order should not be granted during pendency of the appeal since caveat has been filed and further held that no grounds have been made out for staying the execution proceedings. The said view of the Appellate Court is quoted hereunder:

A perusal of the aforesaid order indicates that there are two reasons why the Appellate Court has refused to grant interim order. The first is that an ex parte order of stay is not required because a caveat has been filed and the second is that there is no ground made out for stopping the execution proceedings. It is here that Sri Nipun Singh refers to the decision in the case of Brahm Dutt Chaudhary (Supra) and Mool Chand Yadav (Supra) to submit that the said view of the Appellate Court is illegal.

In the case of Mool Chand Yadav (Supra) it was admitted that Mool Chand Yadav was in possession of and occupying one room of Hari Bhawan. In the suit filed by the corporation an injunction was issued restraining Mool Chand Yadav from occupying the room. An appeal was then filed by Mool Chand Yadav but the Appellate Court although admitted the appeal it declined to grant stay. The Supreme Court under these circumstances found that the possession of Mool Chand Yadav was not disputed then a stay was to be granted during pendency of the appeal since non grant of a stay would have serious civil consequence to Mool Chand Yadav in case his appeal was allowed later.

In the case of Brahmdeo Chaudhary (Supra) the Supreme Court was considering a case where it held that the obstructer could not be dispossessed under order XXI Rule 97 CPC for the reason that his claim would be adjudicated and then he could move an application under Order XXI Rule 99 CPC.

The submission of Sri Nipun Singh tested on the view taken by the Executing Court and Appellate Court indicates that the petitioners are not in possession over the property in question. That being so the order of the Executing Court requires to be gone into. The Executing Court in its order dated 31.7.2013 has recorded as quoted hereunder:

From the aforesaid extract of the said order it is clear that the petitioners while pursuing their application under Order 21 Rule 97 CPC have failed to bring any iota of evidence that they are in possession and are competent to obstruct the decree. This is not a case where the petitioners obstructer are sought to be dispossessed under Order 21 Rule 97 CPC and after adjudication to be given possession again. This is a case where the petitioners have failed to prove or even to prima facie indicate that they were ever in possession of the property in question. Under such circumstances, if the Appellate Court grants an interim protection to the petitioners staying the order of the Executing Court it would amount to giving possession to the petitioners of a property over which they are not in possession. As such the case of Brahm Dutt Chaudhary (Supra) and Mool Chand Yadav (Supra) are not at all applicable in the present case.

The appeal, admittedly is pending and it is for the petitioners to bring on record evidence to show that the order of the Executing Court dated 31.7.2013 was passed on wrong assumption of facts if at all. The petitioners have failed to bring before the Executing Court any evidence either oral or documentary in support of their contention that they are competent to obstruct the decree by virtue of their possession. Even in this writ petition there is no document to show the possession of the petitioners except an averment in paragraph 20.

Under such circumstances, the rejection of the interim stay application by the Appellate Court would not amount to visiting of adverse civil consequences to the petitioners'' since they were not in possession. There is no question of their being dispossessed so as to say that by the impugned order the civil consequences are adverse.

The writ petition has no merit. It is, accordingly, dismissed. No order is passed as to costs.