Veer Sevak vs Anil Kumar

Sujoy Paul, J.—Heard. This petition filed under Article 227 of the Constitution is directed against the order dated 15.07.2013, whereby petitioner''s application u/s 151 C.P.C. (Annexure P/2) is rejected. By filing the said application the petitioner has prayed for staying the execution proceedings on the ground that second appeal is pending before this court.

The execution proceeding is arising out of judgment and decree dated 22.03.2007. The said judgment and decree has attained finality. For execution of this judgment and decree the present execution proceedings are filed before the Court below.

Another judgment and decree is passed by the trial court on 29.06.2012. This was challenged before the first appellate Court in case No. 76A/12 and 77A/12. The appellate Court rejected the said first appeal on 19.01.2013. Against this order the petitioner preferred second appeal No. 174/13. This Court by order dated 06.05.2013 summoned the record of both the Courts i.e. the trial Court and the appellate Court, in the said second appeal.

On the basis of aforesaid factual backdrop, it is crystal clear that the subject matter of second appeal No. 174/13 is not the judgment decree dated 22.03.2007 which is sought to be executed in the impugned execution proceedings. In the application u/s 151 C.P.C. no nexus or even thread relation could be established by the petitioner as to how the second appeal arising out of different judgment can result into stay of judgment and decree dated 22.03.2007 which has attained finality. The Court below considered the aforesaid aspect and rejected the application by holding that it is an abuse of process of law. Rs. 1000/- was imposed as costs on the petitioner.

Shri Bohre, learned counsel for the petitioner, intended to draw attention of this court at page 30 (map) and certain findings of the subsequent judgment. However, there is no pleading in the application u/s 151 C.P.C. (Annexure P/2) with regard to aforesaid contention. In other words, there is no foundation or material in Annexure P/2 which demonstrates that the subject matter of first judgment and second judgment is in any manner common or interrelated.

Thus, in the considered opinion of this Court, the Court below has not erred in rejecting Annexure P/2 on the ground that second appeal arising out of different judgment and decree cannot be a ground to stay the proceedings. More so, when there is no interim order passed by this Court in the said second appeal.

The scope of interference under Article 227 of the Constitution is limited. If the order is passed by the Court below without any authority of law, it suffers from any palpable perversity or manifest procedural impropriety interference can be made. This Court is not obliged to sit as an appellate authority to reweigh or reappreciate the evidence. Interference can to be made sparingly and not on a drop of hat. This view was taken by the Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, Considering the aforesaid, I find no ingredient on which interference can be made under Article 227 of the Constitution, in the present matter.

In the considered opinion of this Court, the finding of Court below is in accordance with law, wherein it is held that the application of the petitioner amounts to abuse of process of law. The said abuse continued by filing this petition before this Court. Therefore, I deem it proper to impose further costs on the petitioner. This petition is dismissed with Rs. 2500/- as costs on the petitioner.