- (1.) RAJESH Tandon, J. Heard Sri L. P. Naithani, Sr. Advocate, assisted by Sri Ramji Srivastava, learned Counsel for the petitioner, Sri Lok Pal Singh, learned Counsel of the respondents No. 2 and 3 and learned Standing Counsel for the respondents No. 1, 4 and 5.
(2.) BY the present writ petitions, the petitioners have prayed for a writ of certiorari quashing the order dated 25th August, 2005 (Annexure-12 to the writ petition) passed by the Sub-Registrar, Dehradun respondent No. 1, as well as the Registration of Sale Deed dated 24th August, 2005 (Annexure-11 to the writ petition ). Briefly stated the plaintiffs/respondent Nos. 2 and 3 filed an Original Suit No. 257 of 1994, Indresh Kumar & Anr. v. Rakesh Kumar & Anr. , before the Civil Judge, Dehradun for specific performance. The said suit was decreed vide judgment and order dated 13-7-2001. Thereafter respondent No. 2, filed Execution Case No. 19 of 2001, Indresh Kumar v. Rakesh Kumar, in which the petitioners have filed objection under Section 47 of the Code of Civil Procedure and a Misc. Case No. 23 of 2004, Rakesh Kumar v. Indresh Kumar & Anr. , was registered. The Executing Court rejected the objection of the petitioners vide order dated 6-10-2004 on the ground that the objection of the petitioners with regard to Section 52 of the Transfer of Property Act is not maintainable. According to the petitioners the order dated 6-10- 2004 has to abide with clause 154 (4) as amended in Uttaranchal State in Z. A. and L. R. Act. According to the said amendment any registered agreement prior to 12-9-2003 shall be valid and operative if the agreement is executed before 31-3-2004 or the extended period of 31-3-2005. According to the amendment all registered agreement shall be treated as void and unenforceable, if the did not comply with the provisions of Section 154 (4) of Z. A. Act as amended in State of Uttaranchal. Subsequently, the petitioner filed another objection under Section 47 C. P. C. in Execution Case No. 19 of 2001, Indresh Kumar and another v. Rakesh Kumar, before the Executing Court, inter alia on the ground that in view of the Uttaranchal amendment in Uttar Pradesh Zamindari Abolition and Land Reform Act, 1952 the decree is void and the same cannot be made executable because of legal impediment. On the basis of objection of the petitioner, a Misc. Case No. 39 of 2004, Rakesh Kumar v. Indresh Kumar & Anr. , was registered. According to the petitioners the land in dispute is agricultural land and is governed by the provisions of Uttar Pradesh Zamindari Abolition and Land Reform Act, 1952 and in view of Section 168 of Uttar Pradesh Zamindari Abolition and Land Reforms Act the land in dispute cannot be transferred in fragment. New Section 154 (3) (4) and (5) have been added in the Uttar Pradesh Zamindari Abolition and Land Reforms Act by virtue of Uttaranchal amendment and the execution of sale-deed in pursuance of an agreement to sell, executed prior to 12-9-2003 is barred by the provisions of Section 154 (4) (b) of amended Act, 1952 subsequent to 31-3-2004.
(3.) HOWEVER, Civil Judge vide order dated 23-4-2005 has rejected the objection of the petitioners on the ground that the objection of the petitioners have already been rejected on merits, therefore, the constructive res-judicata will apply and in view of the same the second objection is not maintainable. The petitioners approached the High Court in W. P. No. 453 of 2005. On 19-7-2005, High Court has rejected the writ petition. The petitioner have approached the Supreme Court in S. L. P. No. 12597 of 2005 and the Hon'ble Apex Court has passed the order to the following effect: - "issue notice. Mr. Pravir Kumar Jain, learned Counsel accepts notice on behalf of respondent No. 1. We, however, clarify that there is no stay and the execution must proceed, in the meantime. '';