# Ram Narayan v. Civil Judge(Sr. Div.) Ambedkar Nagar & Ors

- **Citation:** (2021) 11 ILRA 224
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-26
- **Case number:** Misc. Single No. 32710 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-narayan-v-civil-judge-sr-div-ambedkar-nagar-ors-46489
- **Pages:** 4

## Headnote

A. Civil Law - Civil Procedure Code, 1908 -
Section 42 - The law is clear that the Court to
which decree is transferred under Section 42
has all the powers and jurisdiction of the Court
that originally had jurisdiction to execute the
decree and which as been transferred to forum
for
execution.
Therefore,
the
Civil
Judge,
Ambedkarnagar erred in charging Court to whom a
decree is transferred for execution to assign the task
of execution alone, and not assigning the other duties
of the court of execution. (Para 7)
Writ Petition Disposed of. (E-10)

## Text

224 INDIAN LAW REPORTS ALLAHABAD SERIES
procedure shall be completed by the District
Magistrate within a period of 60 days from the
date petitioner applies before him along with a
certified copy of this order. On the basis of the
certificate issued by the District Magistrate,
petitioner shall be at liberty to approach the
authorities concerned i.e. Respondent no.2
Secretary,
Board
of
High
School
and
Intermediate Education, Allahabad (U.P.) and
respondent no.3 Chairman, Council for the
Indian Schools Examination, New Delhi (CISE
Board) for changing her educational records and
issue her fresh changed mark-sheets and
certificates. Respondent no.2 and 3 shall also
take immediate steps for change of name and
gender
in
educational
mark-sheets
and
certificates of the petitioner and issue fresh
changed mark-sheets and certificates to her, as
per the certificate issued by the District
Magistrate to the petitioner. Such an exercise
would be completed within a period of four
weeks from the date petitioner approaches the
Boards along with a certified copy of this order
and the certificate issued to her by the District
Magistrate.

11. With the aforesaid, present writ
petition stands allowed.
----------
(2021)11ILR A224
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Misc. Single No. 32710 of 2018

Ram Narayan ...Petitioner
Versus
Civil Judge(Sr. Div.) Ambedkar Nagar & Ors.
 ...Respondents

Counsel for the Petitioner:
Shobh Nath Pandey
Counsel for the Respondents:
Badrish Kr. Tripathi

A. Civil Law - Civil Procedure Code, 1908 -
Section 42 - The law is clear that the Court to
which decree is transferred under Section 42
has all the powers and jurisdiction of the Court
that originally had jurisdiction to execute the
decree and which as been transferred to forum
for
execution.
Therefore,
the
Civil
Judge,
Ambedkarnagar erred in charging Court to whom a
decree is transferred for execution to assign the task
of execution alone, and not assigning the other duties
of the court of execution. (Para 7)
Writ Petition Disposed of. (E-10)

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner has applied under Article
227 of the Constitution to set aside the
proceedings of Execution Case No. 9 of 2017,
Ram Ujagir v. Vinod, pending on the file of the
learned
Civil
Judge
(Senior
Division),
Ambedkarnagar. The decree, whereof execution
is now sought, was passed in a partition suit that
is dreadfully ancient. The suit is Original Suit
No. 138 of 1925. The preliminary decree in the
suit was passed on 07.12.1926. The petitioner,
who appears to be a successor of one of the
defendants to the suit and a judgment-debtor, is
at issue with the respondents, who are the
successors or assigns of the plaintiff or the
decree holders. The issue is about the bar of
limitation to the execution of the final decree.
According to the petitioner, the final decree was
passed on 18.01.1988, whereas, according to the
respondents, it was passed on 04.01.1996. It
appears that this wide variation in dates comes
about on account of the time spent in depositing
the requisite court fee payable on the shares of
parties. This Court does not wish to express any
opinion about the date on which executable final
decree for partition came into existence.

2. The proceedings for execution were
instituted on 12.01.2011 before the Court of
11 All. Ram Narayan Vs. Civil Judge(Sr. Div.) Ambedkar Nagar & Ors.
225
Civil Judge (Senior Division), Faizabad. On
12.01.2011, the execution case was registered on
the file of the learned Civil Judge (Senior
Division) Faizabad as Execution Case No. 13 of
2011. Later on, considering the fact that the
property to be partitioned was located within the
territorial
jurisdiction
of
the
Court
at
Ambedkarnagar, a district that was carved out
later from the area of Faizabad, the decree was
sent for execution by the Civil Judge (Senior
Division), Faizabad to the District Judge,
Ambedkarnagar
through
a
memo
dated
16.05.2017. The case was assigned by the
District Judge to the Civil Judge (Senior
Division),
Ambedkarnagar,
where
it
was
registered as Execution Case No. 9 of 2017. In
this execution, the petitioner filed objections
under Section 47 CPC, raising a plea about the
bar of limitation. The Civil Judge (Senior
Division), Ambedkarnagar declined to entertain
this objection on ground that the Court at
Ambedkarnagar is in seisin of the execution that
has been sent to it merely for execution of the
decree by the Court at Faizabad. As such, in the
opinion of the Civil Judge (Senior Division),
Ambedkarnagar, he had no jurisdiction to stay or
defer execution. The objection under Section 47
was not entertained, and the application for stay
was rejected vide order dated 01.09.2018.

3. The petitioner thereupon moved an
application before the the Civil Judge (Senior
Division), Faizabad in Execution Case No. 13 of
2021, seeking to summon the records of Original
Suit No. 138 of 1925 on the basis of whatever legal
advice he received. The Court declined to entertain
any application in Execution Case No. 13 of 2011,
inasmuch as in the opinion of the the Civil Judge
(Senior Division), Faizabad, the execution had
already
been
transferred
to
the
Court
at
Ambedkarnagar, leaving the Court at Faizabad with
no jurisdiction to pass any orders in relation to it.

4. The substance of the petitioner's
grievance is that his plea about the bar of
limitation to execution has not been examined
by the Court either at Ambedkarnagar or
Faizabad, when, according to him, he has a
substantial case to resist execution on that
ground. It is in those circumstances that he has
applied to this Court to judge his plea about the
bar of limitation on merits, going by the
apparent calendar of dates and the way the law
of limitation would apply.

5. I have heard Mr. Shobh Nath Pandey,
learned Counsel for the petitioner and Mr. Badrish
Tripathi, learned Counsel for the respondents.

6. Section 42 Code of Civil Procedure, 1908
that deals with powers of the Court in executing a
transferred decree in its application to the State of
U.P. vide U.P. Civil Laws Amendment Act, 1970
reads :

42. Power of Court in executing
transferred decree-(1) The Court executing a
decree sent to it shall have the same powers in
executing such decree as if it had been passed by
itself. All persons disobeying or obstructing the
decree shall be punishable by such Court in the
same manner as if it had passed the decree, and its
order in executing such decree shall be subject to
the same rules in respect of appeal as if the decree
had been passed by itself.

(2) Without prejudice to the generality
of the provisions of sub-section (1), the powers of
the Court under that sub-section shall include the
following powers of the Court which passed the
decree namely : -

(a) power to send the decree for
execution to another Court under Section 39;

(b) power to execute the decree against
the legal representative of the deceased judgmentdebtor under section 50;

(c) power to order attachment of a
decree.

(d) power to decide any question
relating to the bar of limitation to the
executability of the decree;
226 INDIAN LAW REPORTS ALLAHABAD SERIES

(e) power to record payment or
adjustment under Rule 2 of Order XXI;

(f) power to order stay of execution
under Rule 29 of Order XXI;

(g) in the case of a decree passed
against a firm, power to grant leave to execute
suchdecree against any person other than a
person as is referred to clause (b) or clause (c) of
sub-rule (1) of Rule 50 of Order XXI.

(3) A Court passing an order in
exercise of the powers specified in sub-section
(2) shall send a copy thereof to the Court which
passed the decree.

(4) Nothing in this section shall be
deemed to confer on the Court to which a decree
is sent for execution, the power to order
execution at the instance of the transferee of a
decree.

7. A perusal of the provisions of Section 42
CPC makes it pellucid that an Executing Court
to which the decree is transferred for execution
has all the powers of the Court originally
possessed of the jurisdiction to execute it. The
Court to which a decree is sent for execution
under Section 42 would a fortiori have the
power to entertain objections to execution,
which the Court originally possessed of
jurisdiction would have. Here, the objections
raised by the petitioner is about the bar of
limitation to execution, which is a question that
prima facie relates to execution, discharge or
satisfaction of the decree and by virtue of the
terms of Section 47 is required to be decided
between parties to the suit by the Court
executing the decree and not by a separate suit.
There is no reason to hold as the learned Civil
Judge
(Senior
Division),
Ambedkarnagar
appears to have done that the Court, to which a
decree is transferred for execution, is charged
with the task alone of executing it, and not
performing the other duties of the court of
execution. The law appears to be clear that the
Court to which a decree is transferred under
Section 42 has all the powers and jurisdiction of
the Court that originally had jurisdiction to
execute the decree and which has been
transferred to forum for execution. The approach
of
the
Civil
Judge
(Senior
Division),
Ambedkarnagar reflected from his order dated
01.09.2018 cannot be countenanced.

8. The order dated 01.09.2018 has not
formally been challenged by the petitioner in the
present petition. The petition here before us is one
under Article 227 of the Constitution and invests
this Court with powers of the widest amplitude to
superintend the functioning as well as orders made
by the Subordinate Courts or Tribunals. This Court,
therefore, is of opinion that the order dated
01.09.2018 passed by the Civil Judge (Senior
Division), Ambedkarnagar is one that deserves to be
ignored. The relief that the petitioner has sought
here, however, cannot be granted. The reason is that
it is for the Executing Court in the first instance to
go into the question of the executability of the
decree, which includes a plea of limitation raised by
the judgment debtor. Seen in this perspective, we
are of opinion that while the prayer to set aside the
proceedings of Execution Case No. 9 of 2017, Ram
Ujagir v. Vinod pending before the Civil Judge
(Senior Division), Ambedkarnagar have to be
declined, the Civil Judge (Senior Division),
Ambedkarnagar should be directed to entertain the
petitioner's objection to the pending execution that
he may now prefer under Section 47 CPC or to
proceed with an already pending objection and
decide the same in the same manner as any other
court of execution. It is ordered accordingly.

9. It is of utmost necessity, in the peculiar
circumstances of this case, that this almost
century old litigation should now come to an
end. The Executing Court will proceed to
adjudicate whatever objections are raised to the
execution and decide the same within a period of
six months, in accordance with law.

10. It is made clear that this Court has not
expressed any opinion on merits whether the
11 All. Ajay Singh Vs. State of U.P. & Ors.
227
execution is barred by limitation or not. It is for
the Executing Court to examine this question,
uninfluenced by anything said in this order on
that count.

11. This petition is disposed of in terms of
the orders aforesaid.
----------
(2021)11ILR A227
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

P.I.L. Civil No. 27598 of 2021

Ajay Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Vinod Kumar Singh, Anu Pratap Singh

Counsel for the Respondents:
C.S.C., Satish Chandra Kashish

(A) Civil Law - Public interest litigation - Public
interest litigation is not a pill or panacea for all
wrongs - It is essentially meant to protect
basic
human
rights
of
the
weak
and
disadvantaged - The Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 - Section
122-B - Allahabad High Court Rules - Chapter
XXII Rule 1(3-A) - Disclosure of credentials and
the public purpose sought to be espoused are
also essential elements to be stated in
initiating proceedings in public interest - Court
must maintain social balance by interfering for
the sake of justice and refuse to entertain
where it is against the social justice and public
good.(Para - 9,10,17)

Instant Public Interest Litigation - claim - private
respondent no.7, in connivance with revenue officials
- unauthorizedly occupied large land of State -
recorded in old revenue record as State land in the
name of ''Registry Aspatal' and ''Kanzi House', -
petitioner having criminal history as twenty-nine
criminal cases in heinous offences - no disclosure of
credentials.

HELD:- The petitioner is not a person, who has any
credentials to move in Public Interest. Simply on the
averment/submission that petitioner is a person
involved in social work without disclosing his
credentials and in the absence of the fact that the
petition has been preferred in the interest of justice
for large number of downtrodden persons who are
unable to approach the Courts of Law, the petitioner
is not entitled to maintain this petition in public
interest that too in a matter which does not involve
basic human rights. (Para - 26)

Petition dismissed. (E-7)

List of Cases cited:-

1. Gurpal Singh Vs St. of Punj., JT 2005 (5) SC 389

2. Kushum Lata Vs U.O.I. & ors., (2006) 6 SCC 180

3. St.of Uttaranchal Vs Balwant Singh Chaufal & ors.
,(2010) 3 SCC 402

4. Jaipur Shahar Hindu Vikas Samiti Vs St.of Raj. &
ors., (2014) 5 SCC 530

5. Tehseen Poonawalla Vs U.O.I. & anr., (2018) 6
SCC 72

6. Jaipur Shahar Hindu Vikas Samiti v. St. of Raj. &
ors., (2014) 5 SCC 530

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) Vakalatnama filed on behalf of
respondent no.7 by Shri Hemant Kumar Misra,
Advocate, is taken on record.

(2) The petitioner, Ajay Singh, in the
present
Public
Interest
Litigation
seeks
following reliefs :-

"i. Issue a writ, order or direction in
the nature of Mandamus commanding the
opposite party no.1 to constitute a State Level