Ekhlaque Ahmad vs Ashique Ali

Attau Rahman Masoodi, J.—Heard learned counsel for the applicant.

This application filed under Section 24 of the Code of Civil Procedure (CPC) seeks transfer of Misc. Case No. 176 of 2004 pending in the court of Civil Judge, Senior Division, Ambedkarnagar to any other court of competent jurisdiction in the same district.

The matter was taken up before the District Judge itself in a transfer application as is evident from the order contained in Annexure-6 to the application, which was disposed of by order dated 10.1.2017. The District Judge while passing the order dated 10.1.2017 has clearly recorded that the allegations levelled against the court concerned are baseless hence the facts of the case do not warrant transfer of the proceedings from the court concerned to any other court. The applicant without assailing the said order has filed the present application straightaway before this Court making the following prayer:

"Wherefore, it is most humbly prayed that in the ends of justice and above circumstances this Hon''ble Court may very graciously be kindly pleased to transfer the Misc. Case No. 176/04 (Ashique Ali & Anr. v. Rasheeda Khatoon) pending in the Court of Civil Judge (S.D.), Ambedkarnagar to any other Court of Additional Civil Judges of the District to decide the above case expeditiously and impartially by following procedure of law, else; applicants shall suffer irreparably which cannot be compensated in terms of cost or otherwise."

Though the application made by the applicant before the District Judge has been rejected, yet on the same grounds, coupled with certain more allegations, jurisdiction of this Court under Section 24 CPC has been invoked.

Learned counsel for the applicant while arguing the matter has primarily laid emphasis on the point that the decree holders have filed an application under Section 144 CPC which includes the name of one Shamsulnisa wife of late Usman as opposite party no. 8. It is pointed out that all opposite parties are holding a common decree where under possession of the disputed property is to be restored to them.

Learned counsel further argues that during pendency of the application filed under Section 144 CPC, one of the decree holders i.e. opposite party no. 8 (Shamsulnisa) has died and information thereof was duly furnished to the court by filing an application on 17.12.2016, contained in Annexure-1 to this application. It is urged that unless the array of parties in relation to Shamsulnisa is set right, the application cannot proceed.

It is true that a decree will not be enforced at the instance of a dead person but at the same time the proceedings cannot be brought to a halt or transferred on the mere ground that such an application has not been taken note of by the court below.

It is expected that the court below shall proceed to invoke the provisions of Order 22 read with Section 141 CPC while proceeding with the application filed under Section 144 CPC. Transfer of proceedings at this stage on the alleged ground particularly when the order passed by the District Judge has not been impugned, is absolutely uncalled for and the application being bereft of any merit, is accordingly rejected.