Court No. 21
Civil Misc. Writ Petition No. 12085 of 1991
Smt. Krishna Kumar Srivastava
Versus
District Judge, Allahabad and others
Hon'ble V.K.Shukla,J.
Present writ petition in question has been filed questioning the validity
of the decision dated 09.03.1989 rejected the application moved on behalf
of petitioner under Order 21 Rule 97 C.P.C and order of its affirmance in
Revision.
Brief background of the case is that petitioner claims that he has
purchased house in question based on sale deed dated 09.04.1979 executed
in her favour by Ram Chandra and Sri Ram sons of Sheetala Prasad, Smt.
Shivpatti Devi w/o Sheetala Prasad and Smt. Kamla Devi w/o Sri Mohan.
Further claims that agreement to sale in regard to same was entered about
year back. Petitioner claims that she has been in possession of the house
and her name has also been mutated. Petitioner has stated that on
30.09.1982 she has been dispossessed and then she acquired knowledge of
the exparte decree. Petitioner has stated that on inspection it was reflected
that earlier there was litigation in between Smt. Shivpatti Devi and
defendant no. 9 and said suit was dismissed in default on 06.12.1997 and
thereafter application was moved for recalling of the order and said suit in
question was restored back and ultimately decree was passed and based on
the same eviction has been carried out. Petitioner submits that she moved
application and application moved by her has been dismissed as not
maintainable. Against the same Civil Revision has been filed and same has
also been dismissed.
Learned counsel for the petitioner Sri N.K. Srivastava, contended with
vehemence that in the present case application in question ought to have
been allowed but same has illegally been rejected, as such writ petition in
question deserves to be allowed.
Countering the said submission learned counsel, Sri B.P. Mishra, on
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the other hand contended that rightful view has been taken and as such no
interference should be made.
After respective arguments have been advanced factual position
which is emerging in the present case is that application was moved by
petitioner after final order has been passed under Order 21 Rule 97 C.P.C
whereas in the facts of the case application ought to have been moved
under Order 21 Rule 99 C.P.C. In these circumstances and in this
background opinion which has been formed by court below cannot be said
to be incorrect or erroneous view.
Consequently, present writ petition is dismissed.
At last it has been sought to be stated at the bar before this Court
that application under Order IX Rule 13 C.P.C. had been moved on behalf of
petitioner and same is pending.
Consequently, in case application under Order IX Rule 13 C.P.C.
moved on behalf of petitioner is pending then concerned court is directed to
decide the same within six month from the date of presentation of certified
copy of this order after providing opportunity of hearing to the parties
concerned in accordance with law. It is also clarified that dismissal of the
writ petition will not come in the way of the petitioner to move proper
application under Order 21 Rule 99 of C.P.C and said application will be
decided in accordance with law.
No order as to cost.
Dated 06.08.2010
Dhruv