Kanchan Lal vs Ram Autar

Ritu Raj Awasthi, J.—Heard.

This writ petition has been filed seeking following reliefs:-

"i. set aside and quash the entire proceeding of Execution no.6/08, Ram Autar v. Jagjivan and others pending in the court of Judge, Small Causes Court, Faizabad.

ii. pass such other order or direction which this Hon''ble court may deem fit and proper under the facts and circumstances of the case in favour of the petitioner.

iii. allow the petition with costs."

As per given facts, the opposite party no.1 has filed a suit for permanent injunction which was registered as Suit No.60 of 1994. The petitioners were the defendants in the said suit. They had filed his written statement and contested the said suit. The suit was decreed vide judgment and order dated 29.10.2007.

Learned counsel for the petitioner submits that thereafter he had moved an application for recall of judgment which was rejected vide order dated 7.12.2012 on the ground of limitation. In the meantime, the opposite party no.1 has filed an execution case registered as Execution Case No.6 of 2008. The petitioners have put in appearance in the execution case and filed objection under Section 47 CPC. The Executing Court has rejected the said objection without properly considering the contentions raised therein. The application moved thereafter has also been rejected vide order dated 9.1.2017.

Learned counsel for the petitioner submits that the opposite party no.1 had in fact encroached upon a part of road and abadi land in connection with which proceedings under Section 133 Cr.P.C. were initiated against him and order dated 20.1.1995 was passed against him, however, the said fact was not disclosed by opposite party while filing the suit. The petitioners in their written statement had made pleadings in this regard, however, the same has not been considered by learned court below while deciding the suit. It is further submitted that in the objection filed under Section 47 CPC the petitioners have again taken this plea before executing court but the executing court has refused to entertain the said plea.

I have considered the submissions made by learned counsel for the petitioner and gone through the records.

It is to be noted that the petitioner has not challenged the judgment and decree passed by learned Trial Court in Regular Suit No.60 of 1994 and the same has become final. In the execution case the petitioners in the objection had taken the said plea as contended here, however, the executing court has taken the view that the issues which have been decided by learned Trial Court cannot be looked into by executing court and, as such, the objection raised by petitioners in this regard cannot be considered. I am of the considered view that there is no infirmity or illegality in the view taken by executing court in this regard.

It is also to be noted that the petitioner has not challenged the order rejecting the objections filed by petitioners under Section 47 CPC and have rather come up in this writ petition making prayer for setting aside and quashing entire proceedings of execution case no.6 of 2008.

I am of the view that the reliefs claimed in the writ petition in the given facts cannot be granted to the petitioners.

The writ petition being misconceived is dismissed.