S.D.Agarwala, J. - (1.) THIS is a petition under Article 226 of the Constitution of India. The facts giving rise to the present petition are as follows.
(2.) A suit No. 241 of 1966 was filed by the petitioner Jagdish Saran against Shri Nanhey Mal and Shiv Shanker, respondents No. 1 and 2 in the petition for ejectment and arrears of rent in respect of a shop situated in the district of Moradabad. This suit was decreed on 16th May, 1969 on the basis of the compromise between the parties. This suit was decreed for ejectment and for arrears of rent at the rate of Rs. 20/- per mensem from 4-5-1966 to 3-8-1966. A decree for mense profit was also passed at the rate of Rs. 20/- per mensem from 4-8-1966 till the date of delivery of possession in pursuance of the decree. An application for execution of the decree was filed in the court of Munsif, Chandausi, district Moradabad on 23-12-1972. This application was registered as execution case No. 200 of 1972. On 6-4-1973 Shiv Shanker filed objections under Section 47 of Code of Civil Procedure challenging the execution proceedings on the ground that a fresh tenancy rights had been created in his favour, on the basis of an alleged agreement between him and the landlord who is the petitioner in this case and that the rate of rent had been fixed at Rs, 60/- per mensem. The court examined the matter in detail and dismissed the objection filed by Shiv Shanker on 22-1-1980. Categorical findings were recorded that Shiv Shanker had infact, forged the rent receipts and that there was no fresh contract of tenancy between the parties as alleged by Shiv Shanker. Against the decision dated 22-1-1980 dismissing the objections of Shiv Shanker under Section 47 of the Code of Civil Procedure, Shiv Shanker filed a revision. The revision was also dismissed by the IVth Additional District Judge, Moradabad by his order dated 13-11-1982. After these proceedings under Section 47 were concluded, the petitioner landlord made an application on 21-12-1982 requesting the executing court to proceed with the execution. When the execution again commenced, this time Shiv Shanker took a very ingenious plea that he had already handed over possession of the shop in dispute to the petitioner landlord on 30th November, 1982 and hence the execution against him was liable to be dismissed. The plea set up by Shiv Shanker was resisted by the petitioner-landlord. It was stated by him that in fact, both the judgment debtors Nanhey Mal and Shiv Shanker continued to be in possession of the property in dispute and that the assertions made that the possession had been delivered on 30th November, 1982 was completely a false allegation. As a matter of fact what the respondent No. 2 Shiv Shanker did was that after intimation to the Rent Control and Eviction Officer, he got an allotment order passed in respect of the shop in dispute in favour of his son on 27-11-1982. On 31-12-1982 Shiv Shanker made an application before the Rent Control and Eviction Officer in which it was stated that he had handed over possession to his son Rajendra Kumar on 31-12-1982. On that very day Rajendra Kumar, the son of Shiv Shanker also made an application before the Rent Control and Eviction Officer in which he stated that he had obtained the possession of the shop.
(3.) ON 25th March, 1983 the Munsif, Chandausi before whom the execution application was pending dismissed the execution application on the ground that the possession cannot be delivered as allotment order has already been passed on 27-11-1982 in favour of Rajendra Kumar and possession has already been delivered on 30th November, 1982. Against this order dated 25th March 1983 a Misc. Appeal No. 34 of 1983 was filed. The 1st Additional District Judge, Moradabad by his order dated 27th July, 1984 dismissed the appeal though it found that the allotment order dated 27-11-1982 was wholly void and without jurisdiction. He took the view that since Rajendra Kumar had come into possession on the basis of the allotment order and hence the execution cannot proceed. It is this order dated 27 th July 1984 which has been challenged by the petitioner by means of the present petition.;