# Hari Shankar Kushwaha v. A.D.J. E.C. Act. Lko. & Anr

- **Citation:** (2025) 4 ILRA 709
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-28
- **Case number:** Mattr Under Article 227 No. 1281 of 2024
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-shankar-kushwaha-v-a-d-j-e-c-act-lko-anr-53255
- **Pages:** 4

## Headnote

Civil Law-Constitution of India, 1950Article 227 - The Code of Civil Procedure,
1908-Order 21 - Rule 97, 98 & 101-
Application under Order 21 Rule 97 CPC is
available only to a stranger, who claims to be in
possession of the properties in his rights which
are independent and is a third person claiming
right, title or interest in the property to seek
restoration
of
the
decretal
property
in
contradiction to the powers under Order 21 Rule
35 which prescribes for removal of any person
who is bound by the decree--- In the present
case that the respondent tenant, having failed
to establish any of his defenses taken in reply to
710 INDIAN LAW REPORTS ALLAHABAD SERIES
the SCC Suit, has tried one after the other tricks
to avoid execution--- Proceedings under Order
21 Rule 97, 98 and 101 CPC not maintainable
and were nothing but an abuse of the process
of law--- Executing Court has erred in directing
for
framing
of
issues---Impugned
order
quashed.

Petition allowed. (Para 7 & 8) (E-15)

List of Cases referred-:

## Text

4 All. Hari Shankar Kushwaha Vs. A.D.J. E.C. Act Lko & Anr.
709
prior to the passing of the
impugned
order
of
cancellation
of
allotment, the operation of the impugned
order dated 15.6.2001 shall remain stayed
till further orders of the court. However, it
will be open to the concerned authority to
initiate appropriate proceedings and pass
orders after affording due opportunity to
the petitioner in accordance with law. In
the meantime, the residential house of the
petitioner shall not be demolished."

7. While granting the interim order,
it was noticed that no opportunity of
hearing was afforded to the petitioner,
while passing the impugned order of
cancellation of allotment and the operation
of the order was stayed till further orders
and it was left open to the concerned
authority to initiate appropriate proceeding
and pass order after affording opportunity
of hearing to the petitioner in accordance
with law. It was also ordered that in the
meantime, the residential house of the
petitioner shall not be demolished.

8. In pursuance to the order of this
Court, the respondents did not initiate
proceeding of passing fresh order, after
affording opportunity of hearing to the
petitioner.

9. In view of the admission of nongrant of opportunity of hearing to the
petitioner, the impugned order suffers from
apparent illegality and is liable to be set
aside. The interim order granted on
29.10.2001 also gave liberty to the
respondents to pass a fresh order, after
affording an opportunity of hearing to the
petitioner, but the same has not been done.

10. In view of the admitted position
in the matter that no notice nor opportunity
of hearing was granted to the petitioner, the
impugned order suffers from apparent
illegality and is violative of principles of
natural justice.

11. Accordingly, the impugned
order dated 15.6.2001 (Annexure-1 to the
writ petition) is hereby set aside by giving
liberty to the respondents to pass fresh
order, after giving opportunity of hearing to
the petitioner in accordance with law.

12. With the aforesaid observation
and direction, the writ petition succeeds
and is allowed.
----------
(2025) 4 ILRA 709
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.04.2025

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Mattr Under Article 227 No. 1281 of 2024

Hari Shankar Kushwaha ...Petitioner
Versus
A.D.J. E.C. Act. Lko. & Anr. ...Respondents

Counsel for the Petitioner:
Adnan Ahmad

Counsel for the Respondents:
Anurag Shukla

Civil Law-Constitution of India, 1950Article 227 - The Code of Civil Procedure,
1908-Order 21 - Rule 97, 98 & 101-
Application under Order 21 Rule 97 CPC is
available only to a stranger, who claims to be in
possession of the properties in his rights which
are independent and is a third person claiming
right, title or interest in the property to seek
restoration
of
the
decretal
property
in
contradiction to the powers under Order 21 Rule
35 which prescribes for removal of any person
who is bound by the decree--- In the present
case that the respondent tenant, having failed
to establish any of his defenses taken in reply to
710 INDIAN LAW REPORTS ALLAHABAD SERIES
the SCC Suit, has tried one after the other tricks
to avoid execution--- Proceedings under Order
21 Rule 97, 98 and 101 CPC not maintainable
and were nothing but an abuse of the process
of law--- Executing Court has erred in directing
for
framing
of
issues---Impugned
order
quashed.

Petition allowed. (Para 7 & 8) (E-15)

List of Cases referred-:

1. Brahmadeo Choudhary Vs Rishikesh Prasad
Jaiswal & anr.(1997) 3 SCC 694

2. Shreenath & anr.Vs Rajesh & ors.(1998) 4
SCC 543

3. Silverline Forum Pvt. Ltd. Vs Rajiv Trust &
anr.(1998) 3 SCC 723

4. NSS Narayan Sarma & ors.Vs Goldstone
Exports (P) Ltd. & ors.(2002) 1 SCC 662

5. Samir Singh & anr.Vs Abdul Rab (2015) 1
SCC 379

6. Periyammal (dead) through LRs & ors.Vs V.
Rajamani & anr.etc. (2025) Legal Eagle SC 274

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. The present petition has been filed
by the petitioner challenging an order dated
20.02.2024 passed by the Additional
District Judge, E.C. Act Court no.4
Lucknow in Misc. Case No.257 of 2023
(Jai Prakash Singh Vs. Hari Shankar
Kushwaha) whereby directions were issued
for framing the issues under Order 21 Rule
101 CPC. The petitioner is also sought the
quashing of entire proceedings of Misc.
Case No.257 of 2023 (Jai Prakash Singh
Vs. Hari Shankar Kushwaha) under Order
21 Rule 97, 98 and 101 CPC pending
before the Additional District Judge, EC
Act, Court no.4. A further prayer has been
sought seeking direction for concluding the
Execution Case No.23 of 2021 (Hari
Shankar Kushwaha vs. Jai Prakash Singh).

2. The facts, in brief, are that the
landlord, the petitioner herein, filed a SCC
Suit for arrears of rent, eviction and
damages against the tenant Jai Prakash
Singh bearing SCC Suit No.26 of 2010. On
01.02.2011, Sri Jai Prakash Singh, the
tenant, filed a written statement in which a
ground was taken that he had lend a sum of
Rs.50,000/- to the landlord and an
agreement was also executed in between
the parties being a notarized agreement. On
29.10.2013, the SCC Court dismissed the
suit filed by the landlord against which a
SCC Revision No.1 of 2014 was preferred
and during the pendency of the revision,
the court directed the verification of the
signatures
on
the
alleged
agreement
through an expert, in which it was revealed
that the signatures on the alleged agreement
were forged, as such, the SCC Revision
No.1 of 2014 was allowed on 07.11.2016.
The judgment of the SCC Court dated
29.10.2013 was set aside and the matter
was remanded for deciding the suit
expeditiously. Ultimately on 08.02.2021,
the SCC Suit was decreed and a decree for
eviction was passed, against which a SCC
Revision No.5 of 2021 was filed and is
pending before the Hon'ble High Court. It
has been clarified by the High Court vide
its order dated 02.09.2021 that there is no
interim order pending and directions were
also issued to the Executing Court to
proceed for execution, which is said to be
pending.

3. During the pendency of the
execution, objections were initially filed
under Section 47 of CPC by the tenant, the
said are still said to be pending. In the said
objection, prayer was to quash the
judgment and decree dated 08.02.2021
4 All. Hari Shankar Kushwaha Vs. A.D.J. E.C. Act Lko & Anr.
711
passed in SCC Suit No.26 of 2010. The
tenant thereafter filed an application under
Order 21 Rule 97, 98 and 101 of IPC. In
the said application, which is on record as
Annexure no.10, the entire history of the
case was pleaded and a prayer was made
for setting aside the judgment and decree
dated 08.02.2021 passed in SCC Suit No.26
of 2010. The petitioner filed objection and
sought dismissal of the application which
was registered as Misc. Case No.257 of
2023, however, no orders were passed on
the said application and straightway an
order came to be passed for framing of the
issues under Order 21 Rule 101 CPC.

4. In the backdrop of the said facts,
the contention of the counsel for the
petitioner is that once the petitioner was a
judgment debtor and had contested the
entire suit, the application under Order 21
Rule 97 CPC at his instance was not
maintainable
and
thus,
the
entire
proceedings deserves to be quashed.

5. The counsel for the respondents, on
the other hand, strenuously argues on the
strength of the Order 21 Rule 97 CPC that
the application is maintainable at the
instance of any party. Reliance is placed
upon the judgment of the Hon'ble
Supreme
Court
in
the
cases
of
Brahmadeo Choudhary vs. Rishikesh
Prasad Jaiswal and another (1997) 3
SCC 694; Smt. Ved Kumari through
her
LRs
Dr.
Vijay
Agarwal
vs.
Municipal
Corporation
of
Delhi
through its Commissioner (2023) Live
Law (SC) 712; Shreenath and another
vs. Rajesh and others (1998) 4 SCC
543; Sameer Singh and another vs.
Abdul Rab and others (2015) 1 SCC
379; Jini Dhanrajgir and another vs.
Shibu Mathew and another (2023) SCC
Online SC 643. The said judgments are
being pressed to argue that it is not
necessary that a person should be stranger
to the suit for filing and continuing of an
application under Order 21 Rule 97 CPC.

6. The counsel for the landlord, on
the other hand, places strong reliance on
the judgment of the Supreme Court in the
case of Periyammal (dead) through
LRs and others vs. V. Rajamani and
another etc. (2025) Legal Eagle SC 274.

7. Considering the argument raised
at the bar and the judgment relied upon,
the only question to be considered is
whether the application under Order 21
Rule 97 CPC is maintainable at the
instance of a person who has been held to
be a tenant and who contested the
proceedings was a judgment debtor. The
said issue was extensively considered in
the case of Periyammal (dead) (supra).
The Supreme Court recorded its analysis
in paragraph (e) wherein the Supreme
Court considered the scope of Section 47,
Order 21 Rule 97, 98, 99, 100, 102 and
103 CPC. While interpreting the nature of
the application under Order 21 Rule 97
CPC, the Supreme Court considered the
judgment in the cases of Brahmdeo
Chaudhary (supra), Shreenath (supra),
Silverline Forum Pvt. Ltd. vs. Rajiv
Trust and another (1998) 3 SCC 723,
NSS Narayan Sarma and others vs.
Goldstone Exports (P) Ltd. and others
(2002) 1 SCC 662 & Samir Singh and
another vs. Abdul Rab (2015) 1 SCC 379
and ultimately held that the application
under Order 21 Rule 97 CPC is available
only to a stranger, who claims to be in
possession of the properties in his rights
which are independent and is a third person
claiming right, title or interest in the
property to seek restoration of the decretal
property in contradiction to the powers
712 INDIAN LAW REPORTS ALLAHABAD SERIES
under Order 21 Rule 35 which prescribes
for removal of any person who is bound by
the decree.

8. Considering and following the said
judgments, the submissions made by the
counsel for the petitioner merits acceptance
and are accepted. It is also to be noticed in
the present case that the respondent tenant,
having failed to establish any of his
defenses as taken in reply to the SCC Suit,
has tried one after the other tricks to avoid
execution. The proceedings under Order 21
Rule 97, 98 and 101 CPC were not
maintainable at his instance and were
nothing but an abuse of the process of law,
as such, the Executing Court has erred in
directing for framing of issues.

9. Thus, the order dated 20.02.2024
passed by the Executing Court as well as
the application filed under Order 21 Rule
97, 98 and 101 CPC deserves to be quashed
and is accordingly quashed.

10. The Executing Court is directed to
execute the decree within a period of two
months as held in the case of Periyammal
(dead) (supra). The executing court shall
proceed to ensure that the vacant and
peaceful possession of the suit property
shall be handed over to the petitioner as a
decree holder and if necessary, with the aid
of the police. The said exercise shall be
concluded within a period of two months
from today.

11. The writ petition stands allowed in
terms of the said order.
----------
(2025) 4 ILRA 712
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2025

BEFORE
THE HON'BLE SAURABH SRIVASTAVA, J.

Application U/S 482 No. 551 of 2025

Devendra Pandey ...Applicant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Pankaj Kumar Gupta

Counsel for the Respondents:
G.A., Narendra Kumar Tiwari

Criminal Law - Indian Electricity Act, 2003
- Sections 135 & 149 - Against summon
order - Quashing of - Applicant challenged
proceedings which is primarily based on
procedural illegality of implicating him in
capacity of 'Manager' and instituting FIR
against Institution under Electricity Act,
2003
-
Such
prosecution
is
not
maintainable, as applicable provision is
Section
149
of
Act,
which
governs
offences committed by group of person or
association
of
individual,
such
as
Committee of Management that runs
educational
institution,
also
covers
offences under Sections 135, 136, and 138
- Hence, FIRs against such institution
must proceed under Section 149 alone -
Cognizance
order
dated
02.05.2024,
summoning
applicant
as
Manager
of
institution, is unsustainable as it ignores
mandatory application of Section 149, and
therefore quashed. (Para 6, 11, 14)

Application allowed. (E-13)

(Delivered by Hon'ble Saurabh Srivastava, J.)

Order on Exemption Application
No. Nil of 2025

1. Sri Narendra Kumar Tiwari,
learned counsel appearing for opposite
party nos. 2 and 3 preferred counter
affidavit along with exemption application,