Imran Khan And 3 Others v. Satyadev And 2 Others

case no. 11 of 2012 (Satyadev vs. Motilal). Plaintiff/respondent No.1 filed original suit No.30/1983 against the defendant - respondent Nos.2 and 3 for permanent injunction and also for demolition of wall and chappar constructed during pendency of the suit over plot No.660, area 10 biswa situated in village Pukhrayan Pargana and tehsil Bhoganipur, District Kanpur Dehat. The said suit was decreed by the Trial Court vide judgment and decree dated 28.8.1992 directed the defendant-respondent Nos. 2 & 3 to remove their constructions from plot No.660 aforesaid (land in dispute) within one month. Appeal filed by the defendants being Civil Appeal No.48 of 1992 was also dismissed by the First Appellate Court by order dated

20.8.1993. Thereafter, plaintiff - respondent No.1 filed execution application on 30.7.2012 under Order 21 Rule 5 CPC. On 23.9.2022, the Executing Court passed an order issuing parwana to Court Amin so that the delivery for possession of land be given to the decree holder. When the Amin tried to execute the decree, the same was resisted by the petitioners at the spot claiming independent rights. Thereafter, on 14.11.2022, plaintiff - respondent filed an application for amending the execution application for amendment in the execution application by impleading petitioners as party to the execution application which was resisted by the petitioners and ultimately by order dated 23.3.2023, application filed by the plaintiff- respondent No.1 to implead the petitioners as party to the execution petition was rejected. Petitioners filed an application under Order 21 Rule 97 read with Section 151 CPC which was registered as Misc. Case No.223 of 2023. In the aforesaid application, petitioners claimed their independent rights and also disputed the location of constructions. Petitioners also filed an application under Order 26 Rule 9 CPC for issuance of a commission for appointment of an Advocate Commissioner in the aforementioned case being case no. 223/2023 for making map and determining the boundary of the construction in dispute.

By order dated 5.11.2024, application filed by the petitioners under Order 26 Rule 9 CPC was rejected and by the same order, petitioners were permitted to lead evidence in support of their claim under Order 21 Rule 97 CPC by the next date fixed. By order dated 27.2.2025, Misc. Case No.223/2023 was dismissed for want of prosecution as the petitioners were not present in the Court. Restoration application was moved by the petitioners for recalling the order dated 27.2.2025 on 10.3.2025. The said application is still pending. During pendency of the restoration application, an order dated 27.3.2025 has been passed for execution of the decree and Dakhal parwana (warrant of possession) has been issued on 23.7.2025 by the Executing Court to be executed with the help of police.

Contention of learned counsel for the petitioners is that once an application under Order 21 Rule 97 CPC filed by the petitioners has been entertained which was however dismissed in default and the restoration application is pending for recalling the order dismissing in default, the Court below ought to not have proceeded with the execution till the rights of the parties are decided. Learned counsel prayed that the operation of order passed by Executing Court dated 27.3.2025 may be stayed.

In view of the facts of the case, as mentioned above, I am of the view that the execution case is very old and it would not be appropriate to stay the order, however, since the Executing Court has entertained the application filed by the petitioners under Order 21 Rule 97 CPC, which was ultimately dismissed in default in absence of the petitioners and restoration application for recalling the said order is pending, it would be more appropriate that the restoration application filed by the petitioners be decided by the Executing Court, expeditiously, preferably within next four weeks from today.

For a period of six weeks, parties are directed to maintain status quo. It is made clear that petitioners will not seek any undue adjournments to linger on the disposal of restoration application and in case any such efforts are being made by the petitioners, the interim protection granted to the petitioners shall automatically be vacated. Order Date :- 7.7.2025 Rishabh [Manish Kumar Nigam, J.] RISHABH KUMAR High Court of Judicature at Allahabad