# Nabbu Khan v. IIIrd Additional District Judge, Pilibhit and others

- **Citation:** (2000) 3 ILRA 153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nabbu-khan-v-iiird-additional-district-judge-pilibhit-and-others-39496
- **Pages:** 7

## Text

3All] Nabbu Khan V. IIIrd Additional District Judge, Pilibhit and others 153

Hon'ble Supreme Court in an appeal. The
Hon'ble Supreme Court allowed the
appeal and restored the order passed by
the
Sessions
Judge
dismissing
the
complaint.

Therefore, this case is also an
authority on the point that the accused
persons
on
appearance
after
being
summoned Under Section 204 Cr.P.C.
may file a petition for discharging them.
The very fact that the petition for
discharging the accused and dismissing of
the complaint was allowed by the Apex
Court show that it was held that the
application
for
this
purpose
is
maintainable
before
the
Magistrate
passing
the
summoning
order.
The
contrary view taken by the Full Bench in
the case of Ranjit Singh (Supra) is not in
conformity with the above two decisions
of the Apex Court and therefore, can not
be followed.

12. In the light of the above
discussions, therefore I find that the
decision of the Full Bench in the case of
Ranjit Singh (Supra) to the extent that it
over ruled the preposition no.2 mentioned
above of the case of Kailash Chaudhary
(Supra) is not a good law. In view of the
decision
of
the
Apex
Court,
the
Magistrate has power to recall the
summoning order passed Under Section
204 Cr.P.C. and can discharge the
accused on the request of the accused that
no offence is disclosed against them or
the prosecution is barred by any law for
the time being enforced.

13. In view of the above the learned
Additional Chief Judicial Magistrate, has
erred in rejecting the application of the
applicant on the ground that it is not
maintainable in view of the decision of
the Full Bench in the case of Ranjit Singh
(Supra).

14. The revision is therefore
allowed.
The
learned
Magistrate
is
directed to consider and dispose of the
application of the applicant on merits.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2000

154
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By the Court

1. After hearing Mr. R.N. Bhall and
Mr. Somesh Khare for the applicants and
Mr. S.A. Gilani, and order dated 18th July,
2000 was dictated in open court disposing
of the said application after having
allowed the substitution on the ground
that the impugned order arose out of a
proceedings under Order 21, Rule 97 of
the Code of Civil Procedure. Which was
otherwise appealable and no revision lies.
And therefore, the case was remitted to
the court for deciding the revision
directing it to create the memo of revision
as a memo of appeal in exercise of its
appellate jurisdiction since the order
determining the question under Rule 98 or
under Rule 100 of Order 21 of the Code
are deemed decrees by reason of Rule 103
of Order 21 Mr. Khare had pointed out
that the impugned orders were passed in
proceeding arising under Order 21,Rule
97. This question was specifically pointed
out to Mr. Gilani, who conceded to the
situation. Therefore the said order was
passed. Subsequently at the time of
correcting the order, certain confusion
cropped up. The records were perused and
it was found that the application on the
basis where of the impugned orders were
passed, Were not an application under
Order 21 ,Rule 97. The confusion was
created that the order was related to the
application filed in 1980 by the decree
holder under Order 21 Rule 97. At that
point of time, Mr. Gilani did not place the
relevant materials and failed point out that
these proceedings had no connection with
the proceedings under Order 21, Rule 97 ,
which stood terminated by an order dated
10th January, 1985. Having regard to the
said situation , the order was not signed
and the matter was placed for orders in
the computer list. Both the unusual were
intimated. It was adjourned from time to
time on the ground of absence of the
counsel for the respective parties.

2. Today, the matter has since been
taken up and heard. I have heard Mr.
Sonmesh Khare, learned counsel for the
applicant as well and Mr. S.A. Gilaini for
some time.

In order to appropriate the situation,
it would be nonofficial for us to refer to
the facts giving rise to these proceeding

3. The decree holder Alauddin had
filed an application under Order 21, Rule
97 on 9th May, 1980 in connection with
Execution Case No.7 of 1980 before the
Additional Munsif IIIrd Court, Pilibhit,
which was registered as Misc. Case. Non
13 of 1980. In the said application, it was
pointed out that the execution was resisted
by one Nabbu Khan. The said Misc. Case
was dismissed by an order dated 10th
January ,1985. In the said order it was
pointed out that on 8th April, 1980. The
Amin had pointed out that there was a
resistance in the execution of the decree.
In the said order, the learned Judge had
pointed out that the limitation for making
an application under Order 21, Rule 97 is
30 days from the date or resistance There
fore according to him, the question of
resistance arose or 8th April, 1980.
Whereas the application under Order 21,
Rule
97
was
made
on
9th
May,
1980.Therefore, it was beyond 30 days.
But
the
said
application
did
not
accompany an application under Section 5
3All] Nabbu Khan V. IIIrd Additional District Judge, Pilibhit and others 155

of the Limitation Act, On his ground, the
application under Order 21, Rule 97 was
dismissed.

4. Thus there was no adjudication on
the merit of the case. Neither there was
any finding that Nabbu Khan was in
possession
of
the
suit
property.
Subsequently the decree holder had filed
an application on 10th May,1985 for
issuing Parwana. Copy of the said
application is not annexed with this
petition. Neither Mr. Khare nor Mr.
Gilani was able to produce a copy of the
application made on 10th May, 1985.
However, in the order dated 10th July,
1985, by which the application dated 10th
May, 1985 was rejected mentioned that
there was again an application under
Order 21, Rule 57 for issuing Parwana for
delivery of possession. But the fact
remains that there cannot be any question
of making an application under Order
21,Rule 57, which relates to the question
of attachment, But from the prayer, that
was made in the application, as was
mentioned in the order dated 10th July
,1985, was that the decree holder had
prayed for issuing a Parwana for delivery
of possession. Such an application can be
made under Order 21, Rule 35. However,
Mr. Gilani submitted that by mistake an
application under Order 21, Rule 37 has
been ascribed as made under Order 21
,Rule 57.

5. Be that as it may, by an order
dated 10th July. 1985 the application was
rejected on the ground that once the
application under Order 21,Rule 97
having been rejected and a different
person having been found in possession,
the application for issuing Parwana could
not be maintained in view of the order
dated 10th January 1985.
6. Admittedly, this order is a
evirable one and Civil Revision No. 36 of
1985 was filed by the decree holder,
which was allowed by an order dated 13th
September, 1988 treating the application
dated 10th May, 1985 as an application
under Order 21 Rule 35 and by directing
issue
of
Parwana
for
delivery
of
possession under the said provision. This
order has since been challenged by Nabbu
Khan in a proceeding under Article 226 of
the Constitution of India before this court.

7. The said Nabbu Khan is now
dead, An application for substitution was
filed by judgement debtor Yusuf, which
has since been dismissed by an order
dated 18th July,2000. Thereafter, Mr.
Khare had presented an application for
substitution on behalf of the sons of
Nabbu Khan claiming to be substituted on
the ground that they were heirs of Nabbu
Khan.

8. In this writ petition the order
dated 13th September, 1988 has since been
challenged. In this background the entire
question is to be looked into Therefore,
both the substitution application filed by
the heirs of Nabbu Khan as well as the
writ petition itself was taken up for
hearing simultaneously. In order to
decide the issue , which involves a very
interesting question of law.

9. Mr. Bhalla had made submissions
on behalf of Yusuf while Mr. Somesh
Khare had made submission on behalf of
heirs of Nabbu Khan. Mr. S.A. Gilani has
made submissions on behalf of the decree
holder.

I have heard the learned counsel for
the respective parties as mentioned herein
before.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

156
10. Admittedly, the claim of Nabbu
Khan and his heirs as advanced by
Somesh Khare is that Nabbu Khan is in
possession of the suit property being
subject matter of the decree. It is claimed
that the decree cannot be executed against
Nabbu Khan, who had claimed title to the
property by virtue of adverse possession
since 1966.This question could have been
gone into in the proceedings under Order
21. Rule 97.But the said question has not
been adjudicate of the ground that the
application under Order 21, Rule 97 was
made
on
9th
May.1980
while
the
resistance was made on 8th April, 1980
being beyond 30 days from 8th April,1980
.It appears that the application was late by
two days. But the said application was not
accompanying by any application under
Section 5 of the Limitation Act and as
such the application was dismissed as
barred by limitation.

11. Thus there was no adjudication
on the rights of the parties and the petition
was dismissed on the ground being barred
by time once the execution having failed
on account of resistance by some parties,
it is open to the decree holder to apply for
fresh parwana for fresh execution. The
principal enunciated in Section 11 of the
Code does not apply to an execution
proceedings under Order 21, Rule 97.
Once a decree is to be satisfied. The only
exception is to the extent that either the
decree is inexcusable on the ground of
various reasons that are permissible
within the scope and ambit of the Code of
Civil procedure or that it is unexcitable
against the property for some reason that
the property cannot be identified or it is
not the suit property or that someone else
who had interest in the property is not
bound by the deuce or that the suit is
sought to be executed against a person
against whom it cannot be executed on
account of the fact that he is not bound by
the decree. But these questions are subject
to adjudication on an application under
Order 21, Rule 97 and could be gone into
by reason of Order 21 ,Rule 98. But in
this case no such adjudication was made
.As such there was no scope to apply the
principal of the judicate, which applies in
the case where a question is decided.
Here, the question having not been
decided. The principle of resjudicata
cannot be attracted.

12. Be that as it may, the character of
an application is to be determined on the
basis of the substance of the application
and the relief's claimed. The application
that was made was for issue of Parwana
for delivery of possession. Which can be
had under Order 21 Rule, 35.The said
application even if inscribed as an
application under Order 21, Rule 57, the
same cannot be treated as such since Rule
57 has no manner of application in the
present case and the relief's that was
claimed was not as relief within the
meaning of Rule 57 .Similarly if it was an
application under Order 21,Rule 37, the
same was a mistake, since Rule 37 applies
to money decree and not with regard to
delivery of possession of an immovable
property which is being sought for in the
present case. Thus there is no alternative
but to conclude that application was one
under Order 21, Rule 35 and nothing else.
The said view finds support from the
observations made in the order dated 10th
July, 1985, in which it was mentioned that
it was an application for issuing parwana
for deli very of possession.

13. Since such an application could
not be dismissed on the ground that the
application under Order 21, Rule 97 was
3All] Nabbu Khan V. IIIrd Additional District Judge, Pilibhit and others 157

dismissed
by
an
order
dated
10th
January,1985. Therefore, the trial court
was
not
justified
in
rejecting
the
application by an order dated 10th
July,1985. Thus the said order was passed
in illegal exercise of jurisdiction or in
other worked it has failed to exercise it
jurisdiction and as such the revision court
had rightly fo7nd that the decree holder
was entitled to make a fresh application
under Order 21, Rule 97 and by reason of
Order dated 10th January, 1985 dismissing
the application under Order 21, Rule 97 as
barred by Limitation. The application
under Order 21, Rule, 35, could not have
been thrown out and an appropriate order
ought to have been passed. The said
application
was
mentioned
as
an
application under Order 21, Rule 35,
which pre supposes that the mention of
Order 21, Rule 57 might be a clerical or
typographical mistake. AT the same time,
it may be presumed that Mr. Gilani had
made his submissions on the basis of his
presumption since he was handicapped in
absence of a copy of the said application.

14. Be that as it may, in view of the
prayers made in the said application, it
was noting but an application under Order
21, Rule 35. Thus the court had
jurisdiction to issue Parwana for delivery
of possession. In absence of a decision on
merit on the application under Order 21,
Rule 97 adjudicating the rights of the
parties as contemplated under R7ule 98. It
is not open to the judgment debtor or the
person resisting the execution of the
decree to raise any objection in issuing
any order under Order 21, Rule 35.

15. Be that as it may, at the stage of
the proceedings under Order 21, Rule 35,
Nabbu Khan who in order to claim his
independent right resists the execution of
the decree is neither a necessary party or
he is entitled to any notice. In as much as
the parwana is issued for delivery of
possession
of
the
suit property in
execution of the decree. At the time of
issuing the parwana, it is not necessary to
as certain as to who is in possession. If
anyone claims that he si in possession still
then the same may not be gone into under
Order 21,Rule 35, the court does not
prescribe any such procedure to entertain
any objection by anyone else other then
the judgment debtor while deciding an
application under Order 21, Rule 35.
Specific provisions having been provided
in Rule 98.The contention of Mr. Khare
cannot be accepted that the stranger in the
execution proceedings has a right to
intervene.
If
such
a
contention
is
accepted. In that event the execution will
be am impossible proposition . The
judgment
debtor
may
invite
his
neighbours and friends to intercept and
intervene at every stage and thereby
rendering the whole execution proceeding
redundant and inconclusive for all time to
come and it will give rise to unnecessary
proceedings

16. If a stranger has no right to
intercept or intercept or intervene a this
stage. He cannot claim any right to prefer
a revision or make an application under
Article 226. Against an order 21, Rule 35,
a stranger has no right . But then the said
Nabbu Khan was not a party in the
execution proceedings and therefore, he
cannot claim any right independently
through proceedings under Article 226
relating to a civil proceedings. In as much
as the question is to be determined under
the provisions of the Code of Civil
procedure. By reason of Section 141 of
the Code. The provisions of the Code are
not applicable in a proceeding under
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

158
Article 226 and as such by no stretch of
imagination an application under Article
226 could be maintained against a
proceeding
relating
to
civil
matters
particularly in the facts and circumstances
of the present case challenging the
execution, that too, by a stranger at a
stage when a stranger has no right to
intervene.

17. This application preferred by
Nabbu Khan could not be maintained on
account of absence of a locus standie.
Then again the heirs of Nabbu Khan
claiming through Nabbu Khan cannot
have any right to espouse the cause of
Nabbu Khan even if they are permitted to
be substituted in the proceedings.

18. Mr. Gilani had made an
application for abatement of the petition
on the ground of death of Nabbu Khan.
But as soon heirs of Nabbu Khan has
intervened. Then the petition could be
maintained and would be maintainable.
But the heirs of Nabbu Khan would be
prevented
from
getting
themselves
substituted in the proceedings. Since these
questions
require to be gone into,
therefore, for the sake of convenience, the
heirs of Nabbu be substituted in the place
and stead of the deceased Nabbu Khan
and be substituted in the present writ
petition and be permitted to carry on the
writ petition.

19. In fact Mr. Somesh Khare
appearing on behalf of heirs of Nabbu
Khan has been permitted to make his
submission on the application as well,
Since the matter has been heard on merits,
therefore,
it
is
justified
that
the
application be allowed. Since both the
application for the substitution and the
writ petition was taken up on merit by
consent of the parties, therefore, the
matter is treated as on day's list and also
be decided on merit in view of the
observations made herein before.

20. Since Nabbu Khan has no right
as a stranger to the decree to intervene at
this stage therefore, the application under
Article 226 made by a stranger Nabbu
Khan could not be maintained and as such
is liable to be dismissed.

Mr. Khare had made a prayer for
converting this application into one under
Article 227 of the Constitution.

21. The prayer is allowed. The
application is permitted to be converted
into one under Article 227 of the
Constitution of India.

22. Even then if it is so converted
into an application under Article 227 of
the Constitution, still then the position
would not change. In as much the stranger
having no right to intervene at this stage
in an execution proceeding, the heirs of
Nabbu Khan cannot invoke jurisdiction
under Article 227 of the Constitution.

23. Having gone through the order
dated 13th September, 1988 passed in
Civil Revision No. 36 of 1985 reversing
the order dated 10th May, 1985 passed in
Misc. Case NO. 13 of 1980 arising out of
Execution Case No.7 of 1980, I do not
find any infirmity so as to intervene in
exercise of power of superintendence
under Article 227 of the Constitution of
India..

24. In that view of the matter, this
petition
fails
and
is
accordingly
dismissed. No cost. The leaned executing
court is directed to expedite the execution
3All] Jayanti Prasad Dwivedi V. University of Allahabad through its V.C. 159

 in
accordance
with
law.
All
questions with regard to the merits and
the claims of the respective parties shall
remain open to be agitated in appropriate
proceeding if occasion so arise.

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By the Court

1. This special appeal is directed
against the judgment and order dated
17.8.1998 of a learned Single Judge by
which writ petition no. 13786 of 1997
filed by the appellant was dismissed.

2. The appellant appeared in L.L.B.
IInd Year examination of the year 1993.
Which was held in the year 1997. It is the
case
of
the
University
that
while
appearing in the IVth paper on 9.4.1997,
the appellant was caught red handed and
some printed material relating to the
aforesaid paper was seized from his
possession. A notice was given to the
appellant and, thereafter. By the order
dated 8.12.1997, the examination of
L.L.B. IInd year of the year 1993 in
which he was appearing in 1997 was
cancelled. The appellant preferred the writ
petition challenging the aforesaid decision
dated 8.12.1997 of the University but the
same was dismissed by a learned Single
Judge on 17.8.1998.

3. Learned counsel for the appellant
has submitted that the impugned order
dated 8.12.1997 has been passed by the
University without issuing any show
cause notice and without giving him any
opportunity of hearing. The judgment and
order of the learned Single Judge does not
show that this point had been urged by the