SHISHIR KUMAR,J. - (1.) THIS writ petition has been filed for quashing the order dated 18.11.2004 passed by opposite party No.1, Annexure 7 to the writ petition.
(2.) THE facts arising out of the present writ petition are that the dispute relates to shop situate in Premises No.40, Hazratganj, Lucknow. The said shop was let out to Haji Ahmad Deen, father of the petitioner in the year 1923. He died in the year 1972 leaving behind the petitioners and other sons namely Jameel Ahmad and four daughters and a widow. Opposite party No.2 along with Mirza Rasheed Beg, Mirza Nighat Rasool and Smt.Hasina Khatoon daughter of Mirza Fida Rasool made an application under Section 21 (1) (a) of Act No.XIII of 1972 for release of the shop on the ground of their personal need. The Prescribed Authority after hearing both the parties was pleased to allow the said application partly vide its judgment and order dated 2.5.1980 and order for release of the entire shop except an area of 22'x6' on the front size i.e. left side corner in which the business in the name and style of "Gift Corner" is being carried on by the heirs of Nurudeen. Being aggrieved by the aforesaid order, an appeal was filed by Khairunisha and others and another appeal was filed by the petitioners as Appeal No.87 of 1980 and another Appeal no.97 of 1980 was filed by Mirza Rasheed Beg. All the three appeals were consolidated and decided by a common judgment dated 18.3.1982 and the Additional District Judge allowed the release application with respect to the similar portion shown in the map dated 20.8.1990 in which the words "Gift Corner" have been written and for the remaining portion of the premises in question it was rejected. The petitioners along with other tenants were required to vacate the said premises within two months. Being aggrieved by the judgement and order dated 8.3.1982 Mirza Rasheed Beg and others filed writ petition No. 3145 of 1982 which was dismissed by order dated 2.12.1997. The said order has become final and it has not been challenged by the opposite party and his brother before any court of law.
(3.) ON 29.8.2005, opposite party No.2 made an application for execution under Section 23 of the Act which was registered as P.A. Execution Case No.12 of 2005 against Sartaz Ahmad petitioner No.1 against which objection has been filed and opposite party No.2 got the said application dismissed. Opposite party No.2 on 18.12.2006 made an application for execution of the judgement dated 8.3.1982 passed in Appeal which was registered as P.A. Execution Case No.17 of 2006 against the petitioners and other 23 persons. After receipt of the notice, a detailed objection was filed by Opposite Parties No.8 and 9 and 20 separately on the ground that the said application is highly misconceived and is not maintainable. It was further pleaded that after the judgement dated 8.3.1982 passed by the Appellate Court Smt. Puttan died. In the objection, it has also been disclosed regarding subsequent transfers made by the applicants. It was also pleaded that the petitioners became the owner of the building in question to the extent of 3/7 shares and they could not be evicted from their own property to the extent of their undivided share, therefore, the Opposite Party no.2 is not entitled alone to get the judgment and decree executed. In the objection a specific averment has been made regarding the shares of various persons. Respondent No.1 without considering the entire facts and circumstances of the case in spite of the pleadings that the application is barred by limitation as period of 12 years from the date of final judgment dated 8.3.1982 has already expired. But the Court below has rejected the application holding therein that execution application is not barred by limitation. Further on Issue No.2, a finding has been recorded that doctrine of merger as in Section 111 (d) of the Transfer of Property Act is not applicable. Further a finding has been recorded that application alone filed by Opposite Party No.2 is maintainable, as such the execution application filed by Opposite Party No.2 was allowed and warrant of possession directing the Station House Officer, concerned to get the same executed and 15.11.2008 was fixed for further orders.;