Anjani Kumar, J.
1. This writ petition was heard by this Court and after hearing the petitioner, who appeared in person as well as learned counsel appearing on behalf of the respondents, the same was dismissed on 26th August, 2004 for the reasons to be recorded later on. Now here are the reasons for dismissing the aforesaid writ petition.
2. The facts leading to the filing of present writ petition are that the petitioner-respondents are of springs of two wives of late Hari Shanker Vidyarthi. Mrs. Rama Vidyarthi, who was subsequently substituted by respondent Nos. 1 and 2 as plaintiffs, filed suit No. 37 of 1969 under Section 6(1) of the Specific Relief Act, 1963 with the allegation that the plaintiff and defendant No. 1, namely Mrs. Rama Vidyarthi and Mrs. Savitri Vidyarthi, both are the wives of late Hari Shanker Vidyarthi, who died on 14th March, 1955. The defendant No. 2, petitioner in the present writ petition, is the son of defendant No. 1 and defendant No. 3 is the wife of defendant No. 2. It is further alleged that the plaintiff is the sole owner in possession of house No. 7/89, Tilak Nagar, Kanpur, having purchased it by registered sale deed dated 27th September, 1961 and having been in continuous undisturbed possession, thereof till 26th July, 1968. In the year 1961, when the bungalow No. 7/89. Tilak Nagar, Kanpur was purchased by the plaintiff, then at the request of the defendant Nos. 1 and 2, the plaintiff allowed the said defendants, petitioner and respondent No. 3 in the present writ petition, to continue to live in the said house as licencees at the will of the plaintiff, who is now represented by respondent Nos. 1 and 2 in the present writ petition.
3. In the year 1966, the defendant No. 2, petitioner in this writ petition, started practice as an advocate and later on he was married in the year 1967 to defendant No. 3, now respondent No. 3 in the present writ petition and after their marriage the defendants decided, to settle at Allahabad where the defendant No. 2 wanted to set up his practice. The defendants wanted partition of all the family movables, consequently stocks of all the properties left by plaintiffs husband, namely, late Hari Shanker Vidyarthi, were taken and the defendants having satisfied themselves as regard the share and having taken the same vacated the said house. It is further alleged that defendant Nos. 2 and 3 started living separately since October, 1967 and after December, 1967, they never lived in the said house i.e. 7/89 Tilak Nagar, Kanpur. The defendant No. 1, mother of respondent Nos. 1 and 2 also left Kanpur and went to Allahabad to join her son and daughter in law and they finally left the said house in March, 1968. The petitioner and respondent No. 3 with a view to bolster a claim for a share in the property of the plaintiff made a forcible entry in the plaintiff's aforesaid bungalow No. 7/89, Tilak Nagar, Kanpur on 26th July, 1968 by breaking open the locks with the help of several persons and forcibly occupied two rooms of the front northern side in the said house. The plaintiff lodged a report to the police on the same day through her daughter and requested the defendants to vacate the said two rooms, which they had forcibly and wrongfully occupied, but the defendants instead of vacating the said two rooms began to threaten the plaintiff with dire consequences and also attended to extend their forcible occupation to other portion of the said bungalow. With a view to safeguard her rights and to protect herself from the unlawful acts of the defendant, the plaintiff was compelled to seek help of police and a constable was posted in the said premises from the night of 26th July, 1968 to the morning of 14th August, 1968. The defendant No. 1 petitioner instead of vacating the said house filed a civil suit in the Court of IInd Civil Judge, Kanpur and obtained an ad interim injunction from the learned court on 1st August, 1968 against the plaintiff-mother of respondent Nos. 1 and 2, which was served on the plaintiff on 3rd August, 1968, to the effect that the defendants of the suit, namely, the mother of respondent Nos. 1 and 2 is restrained from interfering with the plaintiffs peaceful possession over the property in dispute forcibly occupied by them. The defendants have no right, title or interest whatsoever to remain in the two rooms aforesaid or to enter the premises No. 7/89, Tilak Nagar, Kanpur. The occupation of the defendants is unlawful and the plaintiff has been dispossessed, otherwise than in due course of law of the two rooms aforesaid described detail at the foot of the plaint without her consent and is entitled to recover possession under Section 6 of the Specific Relief Act, 1963. The aforesaid suit No. 37 of 1969 was filed by the plaintiff with the following prayers :
'(i) A decree for ejectment of the defendants and delivery of possession to the plaintiff of the two rooms of premises No. 7/89, Tilak Nagar, Kanpur, bounded as below :
North -- Open set back occupied by the plaintiff
South -- Room occupied by the plaintiff.
East -- Verandah
West -- Rooms occupied by the plaintiff.
(ii) Cost of this suit.
(iii) Any other relief as this Hon'ble Court deems fit.'
4. The aforesaid suit No. 37 of 1969 filed under Section 6(1) of the Specific Relief Act was decreed ex parte on 14th February, 1976. On 23rd February, 1976, the decree holder filed execution case No. 4 of 1976 for the execution of the decree passed in suit No. 37 of 1969. An objection under Section 47 of the Code of Civil Procedure was filed on the ground that the decretal two rooms are not identifiable. The executing Court vide its order dated 27th May, 1988 rejected the objection filed under Section 47 of the Code of Civil Procedure by the present writ petitioner. Aggrieved thereby, the petitioner filed Revision No. 150 of 1988. During the pendency of Revision No. 150 of 1988, on 9th January, 1989, the decree-holder and the judgment debtors agreed on the following terms :
'NIGRANI KI SUNWAI KE DAURAN NIMN NYAYALAY KE AADESH KE DAURAN HI DINANK 6.1.1989 KO DECREEDAR PRATIPACHHI KE ADHIWAKTA AUR NIGRANIKARTA NE SAPATHPATRA KE SANLAGNA MANCHITRA 19/7G KE SANDARBH MEN YAH SWIKAR KAR LIYA KI DECREE KARMA 'C' AUR 'D' PAR DAKHAL KE LIYE HI PARTI HUI THIS AUR TATSAMBANDH MEN HI NISPADAN LAMBIT HAI. IS PRAKAR NIGRANIKARTA KI YAH APATTI SAMAPT HO JATI HAI KI DECREE GYEY AUR SPAST NAHI HAI.'
5. The aforesaid object was accordingly disposed of and the revision was dismissed. The revisional court further held that during the hearing of the revision, petitioner Ashok Vidyarthi offered to handover the possession of two rooms with the consent of the parties and on 9th January, 1989 itself, a special commission of Sri Satya Narain Sharma was issued with the direction that he will verify as to whether the rooms are vacant and whether the rooms are in position to handover the possession, if so, then the possession of the said two rooms would be delivered to the decree holder. Sri Sharma has submitted his report that on 9th January, 1989 at about 4.30 p.m. that peaceful possession has been delivered to the decree holder.
6. It is stated that the decree holder thereafter aggrieved by the aforesaid order moved an application 108-C and tried to perpetuate the said execution so as to be able to eject the petitioner from his whole house. In this application 108-C, it was demanded that verandah also should be vacated, as the same is the part of the decree. An objection was filed by the petitioner that the demand of verandah is against the decree and also against the execution application and contrary to the agreement entered into before the revisional court in Civil Revision No. 150 of 1988. The revisional court on the aforesaid application vide its order directed that the executing court will decide the application filed by the decree holder dated 11th January, 1989 after giving opportunity to the judgment debtor and record a finding as to whether the decree was fully executed or in part and thereafter pass further order and the case was directed to come up on 30th January, 1989. In the meantime, the petitioner approached this Court and this Court vide its order dated 5th April, 1988 passed the following, order :
'At this stage the appellant has prayed that some time may be granted to him for taking an alternative arrangement for shifting from the house in question. Such a prayer can be made and suitably considered by the trial court or the executing court. The appellant may make necessary application before the appropriate court and I have no doubt that the Court will consider the matter in an appropriate manner.
A certified copy of this order may be supplied to the learned counsel for the parties on payment of usual charges within 24 hours.Dt. 5.4.1998 Sd/-N.N. Mittal (J).'
7. Ultimately, after the aforesaid order was passed by this Court on 5th April, 1988, the objections were heard by the executing court and the executing court vide its order dated 27th May, 1988 rejected the objections filed by the petitioner-judgment-debtor. Aggrieved thereby, the judgment-debtors, including the petitioner in this writ petition, filed a Civil Revision No. 150 of 1988 against the order dated 27 May, 1988. During the pendency of the aforesaid civil revision, an order has been passed that during the course of hearing on 6th January, 1989, learned counsel for the decree-holder-respondent in Civil Revision No. 150 of 1988 and the revisionist-judgment debtor-petitioner in this petition, have agreed that the site map annexed along with the affidavit, which is marked paper No. 19/7-Ga in which it is clearly mentioned the rooms 'C' and 'D' and the said decree was passed for the possession over the two rooms i.e. 'C' and 'D' and that this execution is pending after the execution of the aforesaid decree for possession over the two rooms, as stated above, therefore objection of the revisionist-judgment-debtor stands disposed of to the effect that the decree is not clear and thus is not executable, On the same day, i.e., on 9th January, 1989, the judgment debtor-petitioner in this petition has proposed to handover the possession of the two rooms, which as stated above, was peacefully handed over as per the report of the Commissioner appointed by the revisional court, namely, Sri Satya Narain Sharma, therefore according to the revisional court the revision and the execution has become infructuous. The decree holder also filed an application in the aforesaid execution case being 108-C to the effect that the judgment debtors have forcibly occupied the Verandah attached to the aforesaid two rooms marked as 'C' and 'D' and therefore the judgment debtor should be directed to vacate the same and possession of the Verandah should also be handed over to the decree holder. The executing court vide its order dated 29th May, 2004 allowed the said application 108-C and directed the judgment debtors to handover the possession of the Verandah also. Now according to the petitioner-judgment debtor this gives fresh opportunity to file objection under Section 47 of the Code of Civil Procedure on the ground that the executing court has travelled beyond the decree. The judgment debtor therefore filed an objection under Section 47 of the Code of Civil Procedure on 31st May, 2004 against the execution order dated 29th May, 2004 which were dismissed by executing court. Thereafter the petitioners filed revision against the order rejecting the objection filed by petitioners. The revisional court vide its order dated 24th July, 2004 dismissed the revision filed by the petitioner-judgment debtor against the order dismissing the objections filed by the petitioner. Thus this writ petition. The petitioner-judgment debtor submitted that since no execution appeal can be filed against the order against which the revision was filed in view of Division Bench decision of this Court in Jamaluddin and Ors. v. Asimullah and Ors., AIR 1974 All 69. Paragraph 4 of the aforesaid judgment, which has been relied upon by the petitioner-judgment debtor is reproduced below :
'4. It was, however, argued by the learned counsel for the appellants that the appellants would be without a remedy in view of the provisions contained in Sub-section (1) of Section 47, if they are not allowed to challenge the correctness of the order passed by the execution court in appeal. Sub-section (1) of Section 47 lays down that all questions arising between the parties to be suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. In our opinion the words 'not by a separate suit' refer to a suit of the nature in which the decree under execution itself has been passed. They do not refer to a suit of a different nature which is permitted by Sub-section (4) of Section 6 of the Specific Relief Act, 1963 itself. This sub-section lays down that nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. If the decree that is passed under Section 6 is itself open to challenge by a regular suit permitted by Sub-section (4), there is no reason to think that an order passed in connection with that decree on the execution side under Section 47, Civil P.C. would be a final order and not open to challenge by a similar regular suit. Of course, a suit under Section 6 of the Specific Relief Act cannot be filed to challenge an order passed under Section 47(1) of the Code of Civil Procedure, But a regular suit to challenge that order or for that matter to challenge the decree itself passed under Section 6 of the Specific Relief Act, would not be barred. To that extent the provisions of the general law contained in Section 47(1) shall be deemed to have been overridden by the special law contained in Sub-section (4) of Section 6 of the Specific Relief Act. So it is not correct to say that the appellants would be without any remedy if their appeal against the order passed by the execution court under Section 47(1) is not entertained.'
8. In view of the catena of the decision, referred to by the Division Bench in Para 3 of the aforesaid judgment of Jamaluddin's case, the Division Bench has held that the appeal against the order is incompetent and therefore a revision was filed and after dismissal of the revision this writ petition. Coming to the merits of the order under challenge, it is submitted by the petitioner that in view of the amendment in Section 115 of the Code of Civil Procedure State of U. P. by Amending Act of 2002, since the petitioner has already filed a revision against the order of the executing court, he challenges the order passed by the revisional court by means of present writ petition. For judging the correctness of the revisional court's order in exercise of power under Article 226 of the Constitution of India, it is necessary to reproduce the provision of Section 115 of the Code of Civil Procedure as amended in the State of U.P. by the U.P. Amendment, 2002 :
'115. Revision.--(1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the, order and where the subordinate court has--
(a) exercised a jurisdiction not vested in it by law ; or
(b) failed to exercise a jurisdiction so vested ; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.
(2) A revision application under Sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect, that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the District Court.
(3) The superior court shall not, under this section, vary or reverse any order made except where,
(i) the order, it if had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding ; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay or suit or other proceeding before the Court except where such suit or other proceeding is stayed by the superior court.
Explanation I.--In this section,
(i) the expression 'superior court' means--
(a) the District Court, where the valuation of a case decided by a court subordinate to it does not exceed five lakh rupees ;
(b) the High Court, where the order sought to be revised was passed in a case decided by the district court or where the value of the original suit or other proceedings in a case decided by a court subordinate to the district court exceed five lakh rupees.
(ii) the expression 'order' includes an order deciding an issue in any original suit or other proceedings.
Explanation II.--The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement.'
9. The petitioner could not point out as to what is the error committed by the revisional court in refusing to interfere in exercise of revisional jurisdiction with the order against which a revision was filed. The revisional court has observed that it is not disputed that no objection under Section 47 of the Code of Civil Procedure has been filed by the petitioner-judgment debtor. Thus, in my opinion, considering the amended provisions of Section 115 of the Code of Civil Procedure, referred to above and the law laid down by the Apex Court in the case in Shiv Shakti Co-operative Housing Society, Nagpur v. Swaraj Developers and Ors., 2003 (2) SCCD 651 : (2003) 6 SCC 659, I do not find any error in the order impugned passed by the revisional court, therefore no interference is required by this Court in exercise of power under Article 226 of the Constitution of India. This decision of Shiv Shakti case (supra) has been affirmed by a Division Bench decision of the Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors., (2003) 6 SCC 675.
10. In view of what has been stated above, this writ petition has no force and is accordingly dismissed. The interim order, if any, stands vacated.