# Khatoon and others v. State of Bihar

- **Citation:** (2011) 2 ILRA 822
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-22
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khatoon-and-others-v-state-of-bihar-41962
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226
readwith-General Rules Civil, 1957-Rule
162-Execution
Proceedings
Pendency
since 2005-delay in disposal amount to
denial of decree-anthesis to justicedirection issued to conclude proceeding
within 3 month and to inform the High
Court also.

Held: Para 13 and 14

The delay in executing the decree
amounts to deny the decree holder the
benefit of the decree which is anthesis to
justice.

In
view
of
above
facts
and
circumstances,
the
writ
petition
is
disposed of finally at this stage with a
direction Civil Judge (Senior Division),
Hapur, Ghaziabad to decide execution
case No. 22 of 2005 Suresh Pal vs. Tek
Chand
as
expeditiously
as
possible
preferably within a period of three
months from the date of production of
certified copy of this order.
Case law discussed:
AIR 1979 S.C. 1360; 1997 AWC (Supplement)
525

## Text

822 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Annexure - 11) is quashed with leave to
the tribunal to re-examine the matter in the
light of the observations made above. A
writ of certiorari as well as that of
mandamus are directed to be issued
accordingly.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2011

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Matters Under Article 227 No. - 1539 of
2011

Suresh Pal

 ...Petitioner
Versus
Tek Chand

 ...Respondent

Counsel for the Petitioner:
Sri 0Rajeev Sharma

Counsel for the Respondents:

.......................

Constitution
of
India,
Article
226
readwith-General Rules Civil, 1957-Rule
162-Execution
Proceedings
Pendency
since 2005-delay in disposal amount to
denial of decree-anthesis to justicedirection issued to conclude proceeding
within 3 month and to inform the High
Court also.

Held: Para 13 and 14

The delay in executing the decree
amounts to deny the decree holder the
benefit of the decree which is anthesis to
justice.

In
view
of
above
facts
and
circumstances,
the
writ
petition
is
disposed of finally at this stage with a
direction Civil Judge (Senior Division),
Hapur, Ghaziabad to decide execution
case No. 22 of 2005 Suresh Pal vs. Tek
Chand
as
expeditiously
as
possible
preferably within a period of three
months from the date of production of
certified copy of this order.
Case law discussed:
AIR 1979 S.C. 1360; 1997 AWC (Supplement)
525

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

1. Heard Sri Rajeev Sharma, learned
counsel for the petitioner.

2. An agreement to sell plot No.484
measuring 100 sq. yards situate in
Mohalla-Rajeev Bihar, Hapur, District
Ghaziabad, was executed in favour of the
petitioner on 17.7.91. Petitioner's Suit
No.86 of 92 for specific performance of
the said agreement was decreed on
24.4.96. The said decree is said to have
attained
finality.
Petitioner
moved
application for the execution of the above
decree which has been registered as
execution case No.22 of 2005.

3. The grievance of the petitioner in
the present writ petition is that in the
above
execution
the
parties
are
represented but the execution is not being
decided. He has prayed for direction for
time bound decision of the aforesaid
execution proceedings.

4. The execution was filed as for
back as in the year 2005. The order sheet
reveals that the execution has been
adjourned for one reason or the other. The
petitioner
does
not
appear
to
be
responsible for any delay.

5. The Apex Court in Hussainara
Khatoon and others vs. State of Bihar
AIR 1979 S.C. 1360 held that any
2 All] Suresh Pal V. Tek Chand
823
procedure which does not ensure a
reasonable quick trial cannot be regarded
as fair and just and it would fall foul of
Article 21 of the Constitution of India.
Therefore, speedy trial which mean
reasonable expeditious trial is an integral
and essential part of the fundamental right
to life and liberty enshrined in Article 21
of the Constitution of India.

6. General Rules (Civil)1957 which
have been framed in exercise of powers
under Section 122 C.P.C. vide Rule 162
contained in Chapter VI provides that
execution cases are not to be neglected
and prolonged. The relevant part of the
aforesaid Rule 162 of General Rule
(Civil) is quoted below:-

"Every presiding Judge shall see that
execution cases are not neglected or
needlessly prolonged, but disposed of with
the same care and regularly as original
suits. ---------------------"

7. It has always been an endeavour
of this court to ensure that old and
execution cases be decided expeditiously
for which purpose specific directions to
the subordinate courts have also been
issued.

8. The High Court vide G.L.
No.3020/19-O-20 dated 4th September,
1920 had directed District Judges to
devote special attention to execution cases
and to place them before the Presiding
Judge in open court daily.

9. The relevant extract of the
aforesaid circular is quoted below:-

"District
Judges
should
devote
special attention to execution cases
pending in the courts directly subordinate
to them and take steps to ensure rigid
compliance with the rules. Execution
cases should be placed before the
presiding judge in open court daily in the
same manner as suits and other causes as
they are the most important part of civil
proceedings."

Another
Circular
C.L.No.39/98:
Dated 20th August, 1998 was issued
taking cognizance of necessity of early
disposal of execution cases and it was
observed that pendency of execution
cases for a very long time not only causes
hardship to the decree-holder but also
creates unnecessary litigation therefore,
effort should be made for early disposal
of execution cases.

The relevant part of the above
circular reads as under:-

"It has come to the notice of the
Court that interest in the disposal of
execution cases is not being taken by the
judicial officers. Pendency of execution
cases for a very long time not only results
in hardship to the decree-holder but also
creates unnecessary litigation. The Court
has taken a decision that by giving due
regards to the existing laws and the
provisions efforts should be made for
early disposal of execution cases."

10. The court is at a loss to
understand as to despite general directions
of the court to complete execution
proceedings at the earliest why the above
execution is not being finally decided.
There appears to be no legal impediment
or any stay from superior court with
regard to above execution proceedings.

11. A Division Bench of this court
in Manoj Kumar and others vs. Civil
824 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Judge (Junior Division) Deoria and
others while dealing with the delay in
disposal of execution was shocked to note
that the execution was being adjourned
for the last 7 years and thus expressing
displeasure directed for its disposal within
two months from the date of presentation
of the order before the court concerned.

12.

Their
Lordships
of
the
Allahabad High Court in Ayodhya Sahai
vs.
District
Judge,
Jaunpur
and
another 1997 AWC (Supplement) 525
issued a general mandamus to all
subordinate courts and tribunals to decide
suits, criminal trials, labour disputes, rent
control cases on the basis of time bound
programme and to award adverse entries
to the defaulting judicial officers.

13. The delay in executing the
decree amounts to deny the decree holder
the benefit of the decree which is anthesis
to justice.

14. In view of above facts and
circumstances,
the
writ
petition
is
disposed of finally at this stage with a
direction Civil Judge (Senior Division),
Hapur, Ghaziabad to decide execution
case No. 22 of 2005 Suresh Pal vs. Tek
Chand as expeditiously as possible
preferably within a period of three months
from the date of production of certified
copy of this order.

15. A copy of this order may be sent
to the District Judge, Ghaziabad, who will
ensure that all execution cases included
the above one is decided expeditiously as
directed and to inform about its decision
to High Court.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Writ Petition No. 2069 OF 1994(MS)

Naseemullah

 ...Petitioner
Versus
State of U.P. and others ...Opp. parties

Mohammedan
Law-Section
138
readwith
Section
129-oral
gift
by
Mohammedan-whether
stamp
duty
payable? Held-"No" as per law laid
down by Apex Court Gift Deed is not an
instrument-but mere piece of evidenceneither stamp duty nor penalty can be
imposed-impugned order quashed

Held: Para 20

In view of the above, the assertion of
the respondents that the application
for mutation given by the petitioner is
an instrument is wholly misconceived.
Respondents have also failed to show
any document that infact the property
was purchased by the petitioner. The
question of paying the stamp duty does
not arise in the present case because
Section 33 of the Indian Stamp Act,
1899 provides that stamp duty shall be
recoverable only in case of a registered
instrument as deed. Since the transfer
of immovable property in the present
case, was made by way of an oral gift
and no deed or instrument in writing
was executed, Section 33 of the Act,
will not be attracted. Moreover, the
application
of
the
petitioner
for
mutation, as averred above, cannot be
treated as instrument or deed.
Case law discussed:
2011 (5) SCC 654; AIR 1927 Cal 197; AIR
1984 Gauhati 41