- (1.) BY an order dated 18-4-1996 passed in Appeal No. 247 of 1989 by Additional District Judge (VII) Court, Bijnor, the appeal was dismissed, for default. An application under Order 41, Rule 19 of the Code of Civil Procedure, was filed. BY an order dated 18-3-1998 the said application was dismissed. It is against this order the present writ petition has been filed.
(2.) SRI N. C. Rajvanshi, Senior Advocate, appearing on behalf of the petitioner points out that the impugned order is wholly perverse and could not have been passed, in the facts and circumstances of the case. He has led me through the records of the case. Sri M. S. Haq, learned counsel for the opposite parties opposes the contention of Sri N. C. Rajvanshi. According to him the petitioner has not been able to show sufficient cause for his non-appearance so as to enable the Court to restore the appeal. According to him writ jurisdiction can be invoked by a person who comes with unclean hand. Unless the petitioner comes with clean hands he is not entitled to any relief. He also contends that the order impugned is concluded by finding of fact which this Court cannot interfere in exercise of writ jurisdiction. He also contends that the petitioner had moved writ petition No. 632 of 1998, which was disposed of by this Court on 2-3-1998. But the said fact has not been disclosed in the present writ petition. As such the petitioner is guilty of suppression of material facts, due to which it can very well be said that the petitioner has not come with clean hands. Therefore he cannot invoke writ jurisdiction. He further contends that the appeal was dismissed once earlier in the year 1992 and was restored in the year 1993. The petitioner appears to be habitual defaulter. In fact, the petitioner's game is only to delay the process and keep the matter hanging and thereby harass the opposite parties. Therefore, by reason of his conduct this Court should not exercise its discretionary jurisdiction in his favour. On these grounds he contends that the writ petition should be dismissed. Sri Haq further contends that the appeal has been dismissed thrice and the petitioner is delaying the process and his conduct is bad and does not warrant exercise of equity in his favour. He also contends that in the meantime decree has also been executed and he has obtained the possession. This fact that the decree has already been executed in 1992, is admitted by Sri Rajvanshi. According to Mr. Haq after the decree is executed the appeal has become infructuous. Therefore, the restoration would be futile exercise which the Court should avoid.
(3.) I have heard Sri N. C. Rajvanshi, learned Senior Advocate, appearing on behalf of the petitioner and Sri M. S. Haq, learned counsel appearing on behalf of respondents at length. Having regard to the facts and circumstances of the case and the issue involved, in my view, the question as to the execution of decree and taking of the possession through such execution though not very relevant for the purposes of deciding the issue involved herein but since the question has been raised, we may examine the same. Execution of the decree during pendency of the appeal never makes the appeal infructuous. The appeal continues to be pending until it is finally decided. If the appeal is dismissed and an application for restoration is made, the appeal shall be deemed to be pending during the period of pendency of such application by fiction. The dismissal of the appeal is subject to the result of such application. Thus the execution is subject to the outcome of such application. Inasmuch as if the application is ultimately allowed the appeal is restored then the appeal continues to remain pending. If, not allowed then the appeal is no more pending and the execution becomes final subject however to the attainment of finality of the decree. In other words execution reaches finality if the decree had attained finality. Finality of the decree is not dependants on its execution. On the other hand finality of execution depends on the finality of the decree. The question of futility as raised by Mr. Haq based on such question, therefore, cannot be sustained and as such overruled.;