Gulab Singh Vs. Iiird Additional District Judge and ors. - Court Judgment

Excerpt:
civil - raising objection - order 21 rule 82 of code of civil procedure, 1908 - judgment debtor 's property attached in pursuance of execution of money decree - auction conducted and confirmed - objection raised by judgment subsequently - court arriving at finding of non compliance with order 21 rule 82 - application cannot be maintained. - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - the execution court as well as lower appellate court has recorded a finding that the judgment debtor has not complied with the provisions of order xxi rule 82, code of civil procedure nor did he deposit the money as contemplated under the aforesaid order xxi and no objection whatsoever has been filed to the auction.orderanjanl kumar, j.1. heard learned counsel for the parties. 2. this writ petition under article 226 of the constitution of india filed by gulab singh, judgment debtor aggrieved by the execution of decree passed in original suit no. 30 of 1983, which was decreed by civil judge, fatehpur, vide its order dated 21.11.1985. thereafter judgment debtor, present petitioner preferred a regular appeal against the said judgment and decree passed by civil judge, fatehpur. the said appeal was dismissed by lower appellate court and the decree was confirmed. the decree holder thereafter preferred execution of the decree, which has been registered as execution case no. 4 of 1988 for recovery of the decretal amount against the judgment debtor. the immovable property of the judgment debtor relating to gata no. 348 was attached on 18.2.1988 by civil judge, fatehpur and the same was put to public auction, which was conducted in presence of the judgment debtor on 15.2.1993. the highest bid in the aforesaid auction was that of smt. gomti devi who deposited one fourth of the bid money immediately after the auction sale, on the spot. the auction conducted on 15.2.1993, was confirmed by civil judge, fatehpur, on 9.7.1993 and the entire money was deposited by smt. gomti devi. no objection whatsoever was filed by the judgment debtor. it is this now the present application has been filed. the execution court as well as lower appellate court has recorded a finding that the judgment debtor has not complied with the provisions of order xxi rule 82, code of civil procedure nor did he deposit the money as contemplated under the aforesaid order xxi and no objection whatsoever has been filed to the auction. in these circumstances, this application cannot be allowed. 3. the aforesaid finding was affirmed by the revisional court and the revision was dismissed. 4. in view of the findings recorded by the execution court and affirmed by the revisional court, this court under article 226 of the constitution of india will not interfere with the findings of the courts below. there is yet another reason for dismissing the writ petition that the judgment debtor could have filed an objection under order xxi rule 82, code of civil procedure but he did not file the same. 5. in view of what has been stated above, the writ petition lacks merit and is, accordingly, dismissed. the interim order, if any, stands vacated. however, the parties shall bear their own costs.

Judgment:
ORDER

Anjanl Kumar, J.

1. Heard learned counsel for the parties.

2. This writ petition under Article 226 of the Constitution of India filed by Gulab Singh, judgment debtor aggrieved by the execution of decree passed in Original Suit No. 30 of 1983, which was decreed by Civil Judge, Fatehpur, vide its order dated 21.11.1985. Thereafter judgment debtor, present petitioner preferred a regular appeal against the said judgment and decree passed by Civil Judge, Fatehpur. The said appeal was dismissed by lower appellate court and the decree was confirmed. The decree holder thereafter preferred execution of the decree, which has been registered as Execution Case No. 4 of 1988 for recovery of the decretal amount against the judgment debtor. The immovable property of the Judgment debtor relating to Gata No. 348 was attached on 18.2.1988 by Civil Judge, Fatehpur and the same was put to public auction, which was conducted in presence of the judgment debtor on 15.2.1993. The highest bid in the aforesaid auction was that of Smt. Gomti Devi who deposited one fourth of the bid money immediately after the auction sale, on the spot. The auction conducted on 15.2.1993, was confirmed by Civil Judge, Fatehpur, on 9.7.1993 and the entire money was deposited by Smt. Gomti Devi. No objection whatsoever was filed by the judgment debtor. It is this now the present application has been filed. The execution court as well as lower appellate court has recorded a finding that the judgment debtor has not complied with the provisions of Order XXI Rule 82, Code of Civil Procedure nor did he deposit the money as contemplated under the aforesaid Order XXI and no objection whatsoever has been filed to the auction. In these circumstances, this application cannot be allowed.

3. The aforesaid finding was affirmed by the revisional court and the revision was dismissed.

4. In view of the findings recorded by the execution court and affirmed by the revisional court, this Court under Article 226 of the Constitution of India will not interfere with the findings of the courts below. There is yet another reason for dismissing the writ petition that the judgment debtor could have filed an objection under Order XXI Rule 82, Code of Civil Procedure but he did not file the same.

5. In view of what has been stated above, the writ petition lacks merit and is, accordingly, dismissed. The interim order, if any, stands vacated. However, the parties shall bear their own costs.