Allahabad High Court
Tara Chand And 5 Others vs State Of U.P. And 2 Others on 22 May, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 22.04.2026 Delivered on 22.05.2026 A.F.R. HIGH COURT OF JUDICATURE AT ALLAHABAD MATTERS UNDER ARTICLE 227 No. - 54 of 2022 Tara Chand and 5 others ..Petitioner(s) Versus State of U.P. and 2 others ..Respondent(s) Counsel for Petitioner(s) : Suman Kumar Yadav, Usha Kiran Counsel for Respondent(s) : C.S.C., Sumit Daga Court No. - 9 HON'BLE KSHITIJ SHAILENDRA, J.
1. Heard Ms. Usha Kiran, learned counsel for the petitioners, learned Standing Counsel on behalf of respondents No.1 and 2 and Shri Sumit Daga, learned counsel for respondents No. 4 to 8.
The Challenge
2. This petition under Article 227 of the Constitution of India has been filed by legal representatives of the defendant in Original Suit (OS) No. 83 of 1984 filed by plaintiff-respondent No.3, challenging judgment and order dated 01.01.1985 passed in the suit as well as order dated 08.08.1993 passed by learned Munsif, Deoband, Saharanpur in Execution Case No.8 of 1989. Further prayer has been made to issue a direction to respondent No.2 i.e. Up-Ziladhikari, Tehsil Deoband, District Saharanpur not to dispossess the petitioners from the land in dispute, i.e. Khasra No.160, area 1.054 hectares, situated at Village Nandheda Khurd, Pargana and Tehsil-Deoband, District Saharanpur.
Brief facts as stated in the petition
3. The case of the petitioners is that the suit was filed against their father for return of a sum of Rs.8,000/- and the same was decreed ex-parte on 01.01.1985 directing the defendant to return the money along with 6% interest per annum. The decree was put into execution in 1986. The defendant/judgment debtor died in the year 1988. The execution case was dismissed for want of prosecution, whereafter, the respondent No.3 filed another execution application in 1989 against the petitioners and on 08.08.1993, learned Munsif, without affording any opportunity to the petitioners, restrained them from selling, donating or transferring the property to any person, whereafter, an order was passed on 26.08.1993 for seizure of the property. Further case of the petitioners is that on 20.11.2012, respondent No.3 along with revenue authorities came to the land in dispute and attempted to measure the property for taking possession over the land and, only then, the petitioners came to know about the ex-parte proceedings initiated and decided against their father, prior to which they had no knowledge.
4. The grounds taken in petition are that the orders impugned were ex-parte; were issued without serving any notice upon the petitioners; were passed against principles of natural justice and since the petitioners are in actual and physical possession over the land and were not aware of the loan taken by their father, the orders being illegal and without jurisdiction, are liable to be set aside.
Supplementary Affidavit
5. A supplementary affidavit dated 10.08.2025 filed on 16.02.2026 is on record annexing therewith certified copy of the selective order sheet of execution case and stand taken in the affidavit is that though the objections filed by the petitioners under Section 47 CPC were directed to be taken on record fixing 20.07.1993, the same were not decided and the executing court proceeded to decide the application under Order XXI Rule 54 CPC for auctioning property in favour of the respondents, which was not permissible in law. It is further stated that in case of a decree drawn in a suit for recovery of money, there is no requirement of auctioning the property and further pleas have been taken questioning the procedure of publication etc. with a further comment on the ex-parte decree dated 01.01.1985 that the same had been drawn without following the mandatory provisions of CPC.
Counter Affidavit
6. Counter affidavit filed on behalf of the contesting respondents, who are legal representatives of deceased decree holder-respondent No.3, takes a stand that the judgment and order dated 01.01.1985 decreeing the suit ex-parte was never challenged and, hence, became final; that the petitioner No.2 appeared before the executing court and filed his objections under Section 47 CPC, which were decided on 20.07.1993; that no objection was ever raised regarding judgment and decree dated 01.01.1985; that further proceedings of execution case were held as per provisions contained under Order XXI CPC; that property was auctioned in favour of the plaintiff-respondent No.3 after following due process of law; that a sale deed was executed in his favour on 26.10.1999 based upon which, he came in possession over the property and his name was duly mutated in the revenue records and the proceedings of execution case were closed on 04.10.2002.
7. Further stand is that the petitioners had full knowledge of the proceedings of the OS as well as the execution case; that the petition is not maintainable challenging decree of 1985 and the order dated 08.08.1993; that the predecessor-in-interest of the petitioners had appeared in the suit proceedings but did not file written statement; that the execution case was not dismissed for want of prosecution in 1986; rather it was filed in 1989 itself; that an application was filed by the petitioner No.2 in execution proceedings on 22.10.1992 and, therefore, it is false to allege that the petitioners got knowledge of the case only on 20.11.2012 and even if the said submission is accepted, the present petition was filed after ten years in the year 2022 with no cogent explanation. In the end, prayer has been made to dismiss the petition with heavy cost.
Submissions on behalf of the petitioners
8. Learned counsel for the petitioners has advanced submissions that since the petitioners father against whom the ex-parte decree was drawn in 1985, died in 1988, whereafter execution proceedings were filed in 1989, ex-parte decree is not binding against them and no knowledge of proceedings of execution case has been reiterated by her by contending that a highly valuable property could not be sold for petty sum during auction proceedings and, therefore, entire proceedings culminating into auction and execution of sale deed in favour of the contesting respondent are unsustainable.
Stand taken in Written Submissions
9. Written submissions have been filed on behalf of the petitioners stating that no documents in support of plaint were filed by the plaintiff which is clear violation of Order VII Rule 14 CPC; no evidence of loan was adduced before the Court; the plaintiff was not a registered money lender; no issues were framed before deciding the suit; the plaintiff never demanded interest nor pleaded the same in the plaint but trial court directed to pay interest @ Rs. 6% in an illegal and arbitrary manner; order dated 21.11.1984 indicates that two documents were filed by the plaintiff along with affidavit to prove his case but these two documents were not described in the order which is clear violation of Order VII Rule 14 (1) and (3); the trial court without following legal process, passed an ex- parte order, which is liable to be quashed/set-aside.
10. It is further stated in the written submissions that on 20.10.1986, decree holder filed execution proceedings which were dismissed for want of prosecution; on 26.10.1988, Jai Nand, father of the petitioners died; on 10.08.1989, respondent no. 3 again filed execution adding the names of petitioners as legal heirs of Jai Nand; on 08.08.1993, executing court, without affording any opportunity of hearing and without following the provisions of law, passed ex-parte order restraining the petitioners from selling, donating or transferring the property to any other person under order XXI Rule 54 C.P.C; on 04.12.1992, Kalu Ram-judgment debtor moved an application stating therein that decree holder without permission of the court purchased the auction property and such auction may be cancelled, therefore, the court granted time to the decree holder for filing objection by fixing date 01.01.1993.
11. It is further stated that on 05.02.1993, the executing court cancelled the auction and directed the decree holder to file objection under Section 47 CPC by fixing date 12.03.1993; on 20.07.1993, the executing court, without deciding application of the judgment debtor under section 47 C.P.C., directed to proceed under Order XXI Rule 54 of C.P.C, thereafter again proceeded for auction and auctioned the property in favour of decree holder, which is not permissible under law; no valuation report was called for from registered valuer; no publication in local newspaper for auction was made; as per order sheet, the decree holders took possession over the land in dispute and their names have also been recorded in the revenue records, but actual and physical possession was not taken by the decree holders.
12. Contrary to the stand taken in paragraph 13 of the petition qua knowledge on 20.11.2012, it is stated in written submissions that on 20.11.2021, decree holder came to the land in dispute and started measuring the land for possession, only then judgment debtor came to this Hon’ble Court for stay from dispossession of the land in dispute and challenged the ex-parte order dated 01.01.1985 and proceedings under Order XXI Rule 54 issued on 08.08.1993.
13. It is further stated that at the time of auction, the property was mortgaged with the State bank of India, Krishi Vikas Shakha, Devband on 21.05.1983 against loan of Rs. 51,000/-, hence, the same could not be auctioned without permission of Court or without satisfying the loan; the judgment debtors have also filed a suit for cancellation of execution before Civil Judge (J.D.) which is registered as Suit No. 141 of 2022; despite request made to the Court by the counsel for the petitioner for filing rejoinder affidavit to the counter affidavit, the Court did not grant time to file rejoinder affidavit and suggested to argue the case on merits, hence, under the circumstances, the right to file rejoinder affidavit had been curtailed; the petitioner/Judgment Debtor is still in actual and physical possession over the land and that the judgment debtor was/is ready to pay entire decretal amount with further interest, as may be directed by this Court, within stipulated period.
14. In support of her submissions, learned counsel has placed reliance on M/s Godrej Sara Lee Ltd. v. The Excise and Taxation Officer-cum-Assessing Authority and others : Civil Appeal No.5393 of 2010, decided on 01.02.2023; Pramod Shroff v. Mohan Singh Chopra : Civil Appeal [arising out of SLP (Civil) No.20779 of 2025], decided on 16.04.2026, Vindhayachal v. Commissioner, Azamgarh, Division Azamgarh and others : 2009 (108) RD 63, and Om Sakthi Sekar v. V. Sukumar & others : Civil Appeal No.3362 of 2026, decided on 13.03.2026.
Submissions on behalf of the respondents
15. Per contra, learned counsel for the respondents, by referring to the order sheet of the execution proceedings, has vehemently opposed the pleas qua no knowledge. It is further submitted that once the petitioners are successors/legal representatives of the deceased judgment debtor, the decree is binding against them in all respect and contrary submissions advanced have no force. Further submission has been made that ex-parte decree could not be challenged by means of a petition under Article 227 of the Constitution of India and the same is liable to be dismissed on this ground alone and as far as the order dated 08.08.1993 is concerned, the same is not an order, rather a citation/form in terms of Order XXI Rule 54 CPC restraining the judgment debtor from alienating the property pending execution proceedings and challenge laid to the decree of 1985 and citation/form of 1993 after a period of 29 years being hopelessly barred and belated, the petition deserves dismissal with exemplary cost. Learned counsel has referred to various portions of order sheet of execution proceedings so as to contend that the petitioners are guilty of telling a patent lie before this Court that they were ignorant of proceedings though they throughout participated in execution proceedings, took all possible objections but lost and even those orders have attained finality at every stage.
16. In support of his submissions, he has placed reliance upon Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others v. Tuticorin Educational Society and others : (2019) 9 SCC 538, so as to contend that High Court cannot/should not entertain Matter Under Article 227 in a case where remedies are provided under CPC and since no appeal was filed against the decree, finality attached to the execution proceedings renders the petition as not maintainable.
DISCUSSION, ANALYSIS AND FINDINGS
17. I have considered the submissions made and perused the material available on record.
(a) interim order passed in this petition
18. Initially, an ex-parte interim order was passed on 25.01.2022 inviting response from the respondents and staying eviction of the petitioners till the next date. The same reads as under:
Learned Standing Counsel has put in appearance on behalf of respondent nos. 1 and 2.
Issue notice to the respondent no. 3.
All the respondents may file their counter affidavit by the next date fixed.
Put up this case as a fresh case on 02.03.2022.
Till the next date fixed, the petitioners shall not be evicted from the property in dispute.
(b) On Maintainability of petition:
19. At the first blush, the ratio laid down by the Honble Supreme Court in Virudhunagar (supra), would be attracted against the petitioners as the decree and orders passed under different provisions of CPC were assailable within time under the provisions of CPC itself and the Honble Supreme Court has observed that the courts should always bear in mind that availability of a remedy in terms of the provisions of CPC may have to be construed as a near total bar, otherwise, there is a danger that someone may challenge in a revision or under Article 227 even a decree passed in a suit. Therefore, wherever the proceedings are held under the Code of Civil Procedure, the forum is the Civil Court and availability of a remedy under CPC will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline.
20. However, the Court also deems it appropriate to refer judgment in Bal Krishna Agarwal v. State of U.P. : (1995) 1 SCC 614, wherein the Honble Supreme Court turned down the decision of this Court whereby, after exchange of affidavits and after five years from filing of the writ petition, the High Court had non-suited the petitioner on account of availability of an alternative remedy. The Honble Supreme Court allowed the writ petition on merits and issued appropriate directions. In Durga Enterprises (P) Ltd. v. Principal Secretary, Govt. of U.P. and others : (2004) 13 SCC 665, the Honble Supreme Court, having found that this Court had entertained the writ petition 13 years ago in which pleadings were complete, observed that the High Court ought to have decided the case on merits instead of relegating the parties to civil remedies and, on the said short point, the order of this Court was set aside and the matter was relegated to this Court for early decision on merits.
21. This petition was filed 4 years ago in 2022 and the same was not only entertained but an interim order, though ex-parte, was also passed and despite the fact that the petition under Article 227 challenging an ex-parte decree of 1985 and consequential form under Order XXI Rule 54 CPC was not maintainable at first stage itself, in view of the judgments refered above and detailed execution proceedings held, this Court proceeds to examine the pleas raised by both sides.
(c) Enforcement of decree against legal representatives of the judgment debtors-
22. As far as legal position regarding status of legal representatives of judgment debtor is concerned, legal representative as per Section 2(11) of CPC means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased. Further, Section 146 of CPC deals with proceedings against legal representatives of the original parties providing that where any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him. Further, Section 50 CPC refers to a situation where judgment debtor dies before satisfaction of the decree and it provides that the holder of the decree may apply to the Court to execute the decree against the legal representative of the deceased.
23. Therefore, the submission made that decree could not be executed against the petitioners, who were not in picture when the suit was decreed ex-parte, does not have any force, hence discarded.
(d) On Merits and procedure:
24. There is no dispute about the fact that the petitioners predecessor-in-interest, being defendant in the OS, appeared in the suit proceedings but did not file written statement. The suit proceeded ex-parte against him and was ultimately decreed on 01.01.1985 for recovery of money along with interest. Annexure No.3 to the petition indicates that execution application was initially filed in 1986, however, the same was dismissed for want of prosecution on 20.10.1986. Thereafter, the judgment debtor died on 26.10.1988 and the second execution application was filed on 10.08.1989 (which is not barred in law) against the legal representatives of the judgment debtor to whom notice was issued by order dated 20.09.1989 and, thereafter, further proceedings were held against the present petitioners.
25. In the execution proceedings, objections under Section 47 CPC were filed by the present petitioners. The submission made on behalf of the petitioners that the order sheet does not indicate disposal of objections under Section 47 CPC, cannot be accepted, as short reference of such disposal was indicated in the order dated 20.07.1993 recorded on the order sheet and a separate order running in four pages disposing of the objections was passed on the same day (Annexure CA-1 to the counter affidavit). Operative portion of the order dated 20.07.1993 reads as under:-
आदेश
प्रार्थी पर धारा 47 सी०आर०पी०सी० पर उजरदारी स्वीकार की जाती है। विपक्षी संख्या-1 गिरवर को निर्देशित किया जाता है कि वह पुनः आदेश 21 नियम 54 का पैरवी इजराय संख्या 8/89गिरवर बनाम जयनन्द में अमल में लाये।
दिनांक
20.7.93
(ए०सी०शर्मा)
मुंसिफ, देवबन्द।
26. It is apparent from the order sheet that the petitioner No.2 moved an application on 04.12.1992 seeking to set aside auction proceedings and the objections filed under Section 47 were decided on 20.07.1993 on merits. The said order was never challenged probably for the reasons that the judgment debtors were satisfied with the nature of directions issued in that order, i.e., to proceed under Order XXI Rule 54 CPC. Further proceedings in the execution case were indeed held in furtherance of the order dated 20.07.1993 wherein directions for proceeding as per Order XXI Rule 54 CPC were issued and the citation/form dated 08.08.1993 impugned in the petition was also issued. The property was attached on 26.08.1993 vide Annexure No. 5 to the petition.
27. The order sheet reflects that on account of nobody appearing for making a bid, citation of auction was returned to the executing court on 26.09.1998. Thereafter, on 28.05.1999, auction was again conducted by the Court and the decree holder himself being the highest bidder, purchased the property which fact was noted in the order dated 13.08.1999 by which, auction was confirmed. Thereafter, sale certificate was issued and was registered in the year 1999, however, it appears that for one reason or the other, possession of the property was not delivered to the respondents and subsequently orders dated 02.09.2002 and 04.10.2002 were passed and after taking note of mutation entries made in favour of the auction purchasers/respondents and delivery of actual and physical possession of the property to them, the proceedings of execution case were closed in full satisfaction. The orders dated 02.09.2002 and 04.10.2002 are reproduced as under:-
02.09.2002 आज निष्पादन वाद में डिक्रीदार की ओर से प्रा०पत्र 117 सी2 इस बावत प्रस्तुत किया गया कि नीलाम की गई सम्पत्ति का प्रार्थी के हक में दाखिल खारिज व कब्जा हो चुका है। अतः इस सम्बन्ध में कार्यवाही समाप्त की जावे पेश होकर आदेश हुआ कि वास्ते समात दिंनाक 4.10.2002 को पेश हो।
ह०अपठनीय
04.10.2002 पत्रावली प्रस्तुत। पुकार पर डिक्री होल्डर के विद्वान अधिवक्ता हाजिर है। उनकी तरफ से एक प्रार्थना पत्र 17सी 2 इस आधार पर प्रस्तुत किया गया है कि प्रश्नगत इजराय में नीलाम की गयी सम्पत्ति का प्रार्थी के हक में दाखिल खारिज हो चुका है तथा मौके पर प्रार्थी का कब्जा भी हो चुका है। प्रार्थी द्वारा कार्यवाही दाखिल खारिज समाप्त किये जाने की प्रार्थना की है। चूंकि डिक्रीदार ने स्वयं स्वीकार किया है कि डिक्रीनिष्पादन पूर्ण रूप से हो चुका है। मौके पर प्रार्थी का कब्जा भी हो चुका है। प्रश्नगत डिक्रीपूर्ण रूप से सन्तुष्ट हो चुका है। जैसा डिक्रीदारने स्वयं स्वीकारा गया है। अतः डिक्री की सन्तुष्टी में प्रश्नगत इजराय की कार्यवाही समाप्त की जाती है। पत्रावली दाखिल दफ्तर हो।
ह० अपठनीय
सिविलजज(जू०डि०) देवबंद
(e) Decree holder himself being auction purchaser:
28. Code of Civil Procedure, 1908 contains comprehensive provisions regarding execution of a money decree, attachment of immovable property, passing of restraint order and all such questions can be decided as per the provisions itself. Reference can be made to Order XXI Rules 54 to 95 CPC, which need not be reproduced for the sake of brevity. As to whether a decree holder can purchase property in auction, Rule 72 of Order XXI CPC reads as under:-
72. Decree holder not to bid for or buy property without permission. -(1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.
(2) Where decree-holder purchases, amount of decree may be taken as payment-Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of Section 73, be set off against one another, and the Court executing the decree small enter up satisfaction of the decree in whole or in part accordingly.
(3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder.
High Court Amendments
[Allahabad].-In sub-rule (2) for the words “with such permission” read the words “the property sold” and re-number this sub-rule as Rule 72 and delete sub-rules (1) and (3).-(24-7-1926)
29. A bare perusal of Rule 72 of Order XXI makes it clear that the decree holder can bid for or purchase the property in execution of the decree, however, the same has to be with the express permission of the Court. The Court finds that objections 34-Ka were filed on behalf of the petitioners in the year 1992 itself to the effect that since the property had been purchased by the decree holder without permission of the Court, auction sale be set aside. The order dated 04.12.1992 passed by the executing court noted the said aspect as under:-
04.12.92 वाद पुकारा गया। पक्षकार हाजिर आये। 34 क कालू जे०डी० की ओर से प्रार्थना पत्र प्रस्तुत हुआ कि क्योंकि डी०एच० ने बिना न्यायालय की इजाजत के नीलाम की सम्पत्ति खरीदी हैं अतः नीलाम मंसूख किया जाये। डी०एच० एतराज प्रस्तुत करना चाहता है। दिनांक 1.1.93 को वास्ते एतराज व समान हेतु पेश हो।
ह०अपठनीय
30. The executing court accepted the objections raised on behalf of the judgment debtors and, by order dated 05.02.1993, having found the sale in breach of Order XXI Rule 72 CPC, set aside the same. Then the matter was posted for consideration of objections under Section 47 CPC. The order dated 05.02.1993 reads as under:-
05.02.1993 वाद पुकारा गया। पक्षकार हाजिर आये। दोनो पक्षों को 34क प्रार्थना पत्र पर सुना।
जे०डी० की ओर से प्रार्थना पत्र प्रस्तुत किया गया है कि क्योकि डी०एच० को बिना न्यायालय की इजाजत के सम्पत्ति क्रम की है। अतः नीलाम मंसूख किया जाये डी०एच० की ओर से माननीय उच्चतम न्यायालय द्वारा गनपत वचन द्वितीय अतिरिक्त जिला जज बलिया आल एल० जे० 1986 पेज 271 का हवाला दिया गया। उपरोक्त दृष्टान्त के आधार पर क्योकि डी०एच० द्वारा बिना न्यायालय की अनुपस्थित आदेश 21 नियम 72 में लिये नीलाम में सम्पत्ति क्रय की है जो अवैधानिक है अतः अमीन द्वारा डी०एच० के हक में किया गया नीलाम मंसूख किया जाता है। पत्रावली धारा 47 सी०पी०सी० के एतराज के साथ दिनांक 12.3.93 को पेश हो।
ह०अपठनीय
31. As far as the permission of Court to purchase property in auction is concerned, specific order was passed on 13.08.1999 indicating that permission was granted by the executing court. The order reads as under:-
13.8.1999 पत्रावली प्रस्तुत हुई। डिक्रीदार मय विद्वान अधिवक्ता के उपस्थित आया। मदयून की ओर से कोई उपस्थित नही आया है।दिनांक 11.9.98 को डिक्रीदार द्वारा नीलाम के समय बोली लगाने की अनुमति न्यायालय से प्राप्त की गयी। जिसके अनुसार दिनांक28.5.99 को अमीन अदालत द्वारा मदयूनान की सम्पत्ति की नीलामी की गयी। नीलाम में अन्तिम बोली दस हजार रूपये की डिक्रीदार द्वारा बोली गयी जो स्वीकार की गयी।डिक्रीदार द्वारा प्रा०पत्र 107ग 2 इस आशय का प्रस्तुत किया गया है कि उसने नीलाम के समय कोई रकम जमा नहीं की है।बल्कि उसका रूपया मदयूनान की ओर बाकी है जिसकी उसने मौजूदा इजराय की कार्यवाही दायर की हुई है। इजराय की रकम नीलामी में बोली गयी। बोली यानी 10 हजार रूपये से अधिक है। उसे आदेश 21 नियम 72 (2) सी पी सी के अंतर्गत बोली की रकम में मुजरा की जाये। डिक्रीदार का प्रा०पत्र 107ग2 न्यायहित में स्वीकार किया जाता है।
चूंकि नीलामी की कार्यवाही को 30 दिन से अधिक हो चुके है। और कोई आपत्ति मदयूनान की तरफ से प्राप्त नहींहुयी है। इसलिये नीलाम यानि विक्रय पुष्ट किया जाता है।
पत्रावली अग्रिम आदेश हेतु दिंनाक 17.9.99 को पेश हो।
ह० अपठनीय
सि० जज (जू०डि०) देवबन्द
32. Further order sheet refers to finalization of auction proceedings and issuance of sale certificate. The same is reproduced as under:-
17.09.1999 पत्रावली प्रस्तुत हुई। डिकीदार मय विद्वान अधिवक्ता उपस्थित आया। डिकीदार की ओर से प्रा०पत्र इस आशय का प्रस्तुत किया गया है। कि इजराय में दिनांक 13.8.99 को नीलाम पुष्ट किया जा चुका है इसलिये क्रेता के नाम नीलाम व विक्रय मांग पत्र जारी किया जाना आवश्यक है। क्रेता/डिकीदार नियत स्टाम्प आदि प्रमाण पत्र जारी किये जाने दाखिल करेन के लिये तैयार है। अतः स्टाम्प दाखिल करने के लिये अनुमति प्रदान कीजावे।
सुना एवं पत्रावली का अवलोकन किया। पत्रावली के अवलोकन से स्पष्ट है कि 13.8.99 को नीलाम पुष्ट किया जा चुका है। नीलाम पुष्ट किये हुए तीस दिन से अधिक हो गये। अतः नीलामी विक्रय का प्रमाण पत्र जारी किये जाने हेतु डिक्रीदार नियमानुसार दिनांक 30.9.99 तक स्टाम्प दाखिल करे।
ह० अपठनीय
सि० जज (जू०डि०) देवबन्द
20.09.1999 आज इस वाद में डी०एच० द्वारा मु० 800/- रूपये का स्टाम्प विक्रय प्रमाण पत्र जारी करने हेतु दाखिल कर दिया गया है। पेश होकर आदेश हुआ कि भूमि के विक्रय का प्रमाण पत्र का प्रारूप दाखिल करें।पत्रावली वास्ते अग्रिम आदेश दिनाक 28.10.99 को पेश होवे।
ह० अपठनीय
28.10.1999 आज इस वाद में भूमि के विक्रय का प्रमाण पत्र (सनद नीलाम) रजिस्ट्री कार्यालय से रजिस्ट्री होकर प्राप्त हो गया है।नियत दिनांक पर पत्रावली पेश होवे।
ह० अपठनीय
33. In view of above discussion and record of execution proceedings, it cannot be said that sale was hit by any provision of law. All arguments questioning the validity of auction sale are, therefore, discarded. The Court is satisfied that due procedure of law was followed and, further, whatever objections the petitioners could take in execution proceedings, they did take and once the same were decided without any further challenge, necessary consequences were bound to follow and had rightly followed. As far as submissions that the plaint did not comply with the requirements of Order VII Rule 14 CPC or that the suit was wrongly decreed for one or the other reasons including the plea that the plaintiff was not a money lender, in the opinion of the Court, the decree drawn in 1985 having attained finality in view of no challenge laid to the same either by filing any statutory application or appeal, in a petition arising out of execution proceedings, direct or indirect challenge to the validity of the decree cannot be made.
34. It is well-settled that even executing court cannot go behind the decree and once the remedy available to the petitioners in terms of Section 47 CPC also stood exhausted in the year 1993 with no further challenge to the same, the validity of the decree cannot be reopened in a Matter U/A 227 of the Constitution of India after three (3)decades. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman: (1970) 1 SCC 670, a three Judge Bench of the Honble Supreme Court has held that Court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
35. Judgment in the case of Om Sakthi Sekar (supra), as relied by learned counsel for the petitioners, so as to contend that when credible issues are raised regarding adequacy of valuation or fairness of process and leading to fixation of reserve price, supervisory jurisdiction of the Court may be invoked, is clearly distinguishable on facts. The controversy before the Honble Supreme Court in that case had arisen from the proceedings held at Debts Recovery Tribunal (DRT) and Debts Recovery Appellate Tribunal (DRAT). In that case, auction was conducted by Recovery Officer in 2010 pursuant to order passed by the DRT in 2010; an appeal was filed before the DRAT in which an interim order was passed in 2010 itself, later on, after certain proceedings, the matter was remitted by the High Court to the DRAT in 2017 and, on remand, the DRAT further affirmed the order of DRT. The entire controversy was in relation to fixation of reserve price, auction held, irregularities therein, interim order and its effect and action in furtherance of order of remand. In the present case, no such controversy exists and the matter has simply arisen out of a decree drawn in 1985, which has throughout remained unchallenged for the last 40 years and execution proceedings closed in full satisfaction have already been found as lawful.
36. Alleged infirmities pointed out in the auction sale in the present case are not found to exist and, even otherwise, the same having been held as per the procedure prescribed in CPC and, whatever objections the petitioners could raise were raised under Section 47 CPC and once finality stands attached to the auction sale and delivery of possession as well as consequential mutation entries, invoking supervisory jurisdiction to set aside the decree drawn 40 years ago and all consequential proceedings under the garb of supervisory jurisdiction under Article 227 of the Constitution of India would not at all be proper, otherwise it would make a mockery of civil proceedings and, under such circumstances, the ratio in Virudhunagar (supra), applies in full force against the petitioners.
37. Another judgment in the case of M/s Godrej Sara Lee Ltd. is on the point that alternative remedy is not an absolute bar in entertaining the writ petition under Article 226. The present petition has been filed under Article 227 and even if, the principle laid down in M/s Godrej Sara Lee Ltd. (supra) is applied, this Court would be required to examine the pleas raised and not to dismiss the petition remitting the matter back for availing alternate remedy. This Court has already examined the merits of the contentions raised in the light of record of proceedings and, therefore, the ratio laid down in the said judgment has been followed.
38. The judgment in the case of Pramod Shroff (supra) is also distinguishable on facts. In the said case, the Honble Supreme Court had tested validity of judgment passed by High Court of Calcutta in a first appeal wherein the High Court had simply affirmed the trial courts judgment although the judgment was not found satisfying the requirements of Section 2(9), Order XIV Rule 1 and Order XX Rule 4 CPC. It was held that even if written statement is not filed, requirement to frame points for determination remains and the Honble Supreme Court, after setting aside the order of High Court and that of the trial court, remanded the matter to the trial court for fresh consideration.
39. The present case does not arise out of an appeal against decree and, as noted above, no appeal was ever filed against the decree drawn in 1985. The decree was put into execution and execution proceedings stood culminated after disposal of all objections raised by the judgment debtors. A belated challenge laid after more than 10,000 days in consequential proceedings and under garb of decree, which was finalized more than 13,500 days ago when the petitioners had knowledge and had also participated, would not at all be permissible and, therefore, the judgment cited is of no help to the petitioners.
40. The last judgment relied upon by the petitioners counsel in the case of Vindhayachal (supra), had arisen from a case where a recovery certificate was issued on default of refunding the amount of loan taken for purchase of tractor. Certain money was deposited by the borrower and, for outstanding dues, property was auctioned. There was a determination of market value of the property, auction was approved by the Collector and objections were filed under Rule 285(I) of Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952. The same were rejected by the Commissioner against which order writ petition was filed. This Court, after dealing with the Rules, interfered with the matter and set aside the auction holding that the entire loan stood paid. The facts of the present case, being altogether different and arising out of proceedings of a civil suit, decree drawn therein and execution proceedings, the judgment is of no help to the petitioners.
(f) Allegations against the Court
41. The Court, with great pains, is constrained to deal with a piercing submission raised in written arguments that the petitioners were not granted time to file rejoinder affidavit and their counsel had to argue the matter. The tenor of the said statement raises a question on the dignity of this Court itself, therefore the Court deems it appropriate to deal with the said submission also.
42. The order sheet of the present petition reflects that over a number of years, the case was being continuously got adjourned either on the request of counsel for the petitioners or on her illness slip probably on account of an interim order passed therein and when it was going to be finally heard on 16.02.2026 as a mentioned matter, learned counsel for the petitioners, except denying the respondents plea qua possession, was not at all inclined to advance any arguments on merits and submitted that she would explain everything on the next date. Based upon the submissions made, it was understood between the three, i.e., counsel for the petitioners, counsel for the respondents and the Court that the matter shall not be adjourned on the next date and, with this understanding, the case was fixed peremptorily in top ten cases to be heard on 17.03.2026 with a clear indication that the same shall not be adjourned on the next date. The order dated 16.02.2026 is reproduced hereunder:-
1. Supplementary affidavit filed by the petitioner is taken on record.
2. Vehement submissions have been made by learned Counsel for the respondent that this petition is not maintainable as, under the garb of challenging a parvana only issued on 08.08.1993 in execution proceedings, an ex parte decree passed in the year 1985 has also been challenged.
3. An interim order restraining eviction of the petitioners was passed in the year 2022 in this petition.
4. It is submitted that the said interim order has not been extended since the year 2022 and, in the meantime, the respondent, who is an auction purchaser, has already come in possession and relevant document is also in his favour. Therefore, the very cause pressed through the present petition does not survive.
5. Learned Counsel for the respondent further submits that though the supplementary affidavit is of the year 2025, the same has been served upon him today in Court to delay the proceedings.
6. The statement regarding possession has been denied by Ms. Usha Kiran, learned Counsel for the petitioner and she submits that she will explain the situation on the next date fixed and that possession of the property is with her client.
7. List in top ten cases peremptorily on 17.03.2026.
8. In the meantime, if the respondents so desire, counter affidavit may be filed.
9. The case shall not be adjourned on the next date.
43. The matter could not be taken up on 17.03.2026 due to paucity of time and when it came up for disposal on 22.04.2026, the Court proceeded to hear the arguments, as per previous understanding. At this juncture, learned counsel for the petitioners adopted all means and ways to avoid hearing of the matter and started seeking time to file rejoinder affidavit, however also made submissions based upon the material that was available on record. It is to observe that counter affidavit was served upon counsel for the petitioners on 11.03.2026, much before which date on 16.02.2026, the order was already passed indicating that the matter shall not be adjourned on the next date. As to what prevented the petitioners or their counsel from filing rejoinder affidavit over a period of 40 days since after service of counter affidavit on them, is not understandable and it is thus clear that under the garb of seeking time to file rejoinder affidavit when 40 days time available to the petitioners for that purpose was not deliberately utilized by them, gives a clear picture that the attempt of the petitioners was only and only to somehow not allow the Court to hear and decide the matter on merits despite clear indications made earlier. Therefore, instead of putting a blame on the Court, the petitioners represented by their learned counsel should have introspected themselves and should not have taken Court proceedings for granted.
44. Even otherwise, it is observed that while counsel for both sides were heard at length on 22.04.2026, request made by counsel for the petitioners to file rejoinder affidavit was certainly accepted by the Court but in terms of granting her permission to file written submissions for saying whatever she wanted to say in the rejoinder, for which purpose she prayed three weeks time which was granted and the judgment was reserved. For a ready reference, order dated 22.04.2026 is reproduced as under:-
Heard Ms. Usha Kiran, learned Counsel for the petitioners, Sri. Sumit Daga, learned counsel for respondent nos. 4 to 8 and learned Standing Counsel on behalf of respondent nos. 1 and 2.
After advancing arguments at length, Ms. Usha Kiran seeks time to file written submissions. She is granted three weeks’ time to do so.
Judgment reserved.
45. Learned counsel filed written submissions within the fixed timeline and the pleas raised therein have been taken into consideration herein-above. The stand taken in written submissions has been treated as submissions in opposition to the stand taken in the counter affidavit and, thus, no prejudice is caused to the petitioners. It is, thus, clear that every attempt was made on behalf of the petitioners to keep the petition pending and the conduct of the petitioners side is found highly objectionable and is condemned.
CONCLUSION
(g) No interference:
46. In view of above discussion, it is found that the decree drawn in the year 1985 became final 37 years prior to filing of the petition and whatever objections the petitioners being legal representatives of judgment debtor could take in execution proceedings, they had taken but remained unsuccessful. There was no factual or legal impediment in auctioning the property in the course of execution of a money decree and no error is found in auction sale and closure of execution proceedings in full satisfaction of the decree in terms of mutation, delivery of actual possession, confirmation of sale and registration of sale certificate/sale deed. Hence, no interference is warranted in the orders impugned.
(h) Abuse of process:
47. It is also clear that submissions based upon absolutely false pleadings somehow persuaded this Court to pass ex-parte interim order to the effect that the petitioners shall not be evicted from the property in dispute although they were not in possession even on the date of passing of interim order. It is also found that when the interim order was passed in the year 2022, incomplete copy of order sheet only upto 17.08.1992 was annexed along with the petition. Supplementary affidavit annexing further order sheet of the execution proceedings upto 04.12.2002 was brought on record very recently only on 16.02.2026, which fact was indicated in the order passed on that date, as already reproduced hereinabove.
48. The petitioners have taken somersault insofar as knowledge of the proceedings culminating into auction sale is concerned. Whereas in the petition it is stated that, for the first time, they came to know about proceedings on 20.11.2012, in the written submissions they have taken a contrary stand that they acquired knowledge in 2021 and have also taken aid of certain objections filed by them during the course of proceedings and result thereof. The Court is of the firm opinion that the petitioners selectively chose documents for filing and raised absolute false and misleading pleas to obtain interim order from this Court and succeeded in their nefarious design and by misleading this Court at the first instance as if they were unaware of everything. They succeeded to obtain an interim order restraining their eviction from the property although possession was already delivered to the decree holder/his legal representatives and their names were also mutated in the revenue records.
(i) Cost:
49. The petition, as initially filed, was not only barred by laches of 10274 days, as reported, but was also not maintainable and filing of the petition was gross abuse and misuse of the process of law and even when the merits of the case have been dealt with by this Court, the petition deserves dismissal with costs. The cost could be exemplary and huge for falsehood and conduct of the petitioners but considering the segment they belong to, as reflected from the record, the Court is not inclined to impose heavy cost; however, the manner in which the proceedings have been conducted throughout, the Court deems it appropriate to impose cost of Rs 2/- (two) on the petitioners so as to convey them worth of their objections and conduct in the eyes of this Court.
50. The petition is, accordingly, DISMISSED with cost of Rs. 2/- (two).
51. The petitioners are directed to deposit cost in the form of cash/coin before the Registrar General of this Court by 07.07.2026 failing which the Registrar General shall send a copy of this order to the District Magistrate, Saharanpur, who shall ensure that the amount of cost is recovered from the petitioners as arrears of land revenue by adopting all measures including coercive measures, positively by the end of July, 2026.
52. Registrar (Compliance) shall submit a compliance report as regards deposit/realization/payment of cost, as directed hereinabove, on or before 12.08.2026.
(j). Possession:
53. Since, despite culmination of proceedings in favour of the respondents decades ago, assertions have been made on behalf of the petitioners before this Court that actual and physical possession of the property still lies with them, though such plea has been denied by the respondents and otherwise found untenable, it is hereby provided that the administration shall ensure no hindrance in securing and protecting actual and physical possession of the contesting respondents over the property in dispute.
54. To record compliance of this order, the case shall be listed before appropriate bench as a decided matter on 12.08.2026 under the caption: FOR COMPLIANCE REPORT FOR PERUSAL OF THE COURT.
(Kshitij Shailendra, J)
May 22, 2026
Jyotsana
