S.K. Keshote, J. - (1.) THE petitioner by this writ petition has challenged the order dated 7.8.86 passed by the Civil Judge, Moradabad whereby he dismissed the objections of the petitioner filed under section 47 of the C.P.C. 1908 and the order dt. 16.1.87 of the Vth Additional District Judge Moradabad whereunder the revision filed by him against the order of the trial court dt. 16.1.87 has been dismissed. Smt. Har Pyari Devi was owner of the house in dispute. She executed the sale deed of this house in favour of the respondent No. 4 with the condition to right of reconveyance within a period of three years. Smt. Har Pyari Devi remained in possession of house as tenant of the transferee.
(2.) SMT . Har Pyari died leaving the petitioner and Amar Nath respondent No. 3 her two sons as her heirs and legal representatives. Shri Jagdish Prasad respondent No. 4 refused to reconvey the house to the petitioner and the respondent No. 3. They filed a suit for specific performance of the agreement though the petitioner was there in as defendant. This suit was registered as C.S. No. 17 of 1974. This suit has been decreed by the Civil Judge, Moradabad vide its judgment and decree dt. 12.5.75 in favour of the petitioner and respondent No. 3. The transferee respondent No. 4 filed Civil Suit No. 1560 of 1973 in the same court for eviction and for recovery of the arrears of the rent. Both these suits were consolidated and tried and decided by the common judgment. Civil suit No. 1560 of 1973 has been decreed against both the petitioner and respondent No. 3 for arrears of rent. In the eviction suit the court below held that both the petitioner and respondent No. 3 are the tenants in the disputed house. The petitioner stated in the writ petition that the respondent No. 3 has turned dishonest and practiced fraud against him. Though the suit for the specific performance was decreed in favour of both of them, both of them shared litigation expenses and expenses of execution sale deed etc. but the respondent No. 3 fraudulently got sale deed of the house in dispute in his name only omitting the petitioner. After sale deed the decree was put in execution by the respondent No. 3 which was registered as execution case No. 17 of 1977 and sought to dispossess the petitioner from the house in dispute. The petitioner thereafter filed objections under section 47 of C.P.C. 1908 and also filed an application for staying of his dispossession from the house. The petitioner has made a categorical statement in the objections that he alone is in possession of the house in dispute and respondent No. 4 was never in possession of the same. The respondent No. 4 did not file any counter affidavit to the said factual averments of the petitioner made by him in the objections. The respondent No. 3 also did not file any counter affidavit.
(3.) THE learned executing court vide its order dt. 7.8.86 dismissed the petitioner's objections. The learned executing court dismissed the objection of the petitioner mainly on the basis of the alleged relinquishment deed dated 14.1.74 said to be executed in favour of the respondent No. 3 by him, and that he was not in possession of the house in dispute.;