Manoj Kumar Gupta, J. - (1.) The instant petition under Article 227 of the Constitution invoking supervisory jurisdiction of this Court has been filed calling in question an order dated 20.11.2018 passed by the Executing Court (Additional District Judge, Court No. 3, Ghaziabad) in Execution Case No. 1/2012. By the said order, application bearing paper No. 111Ga filed by the petitioner praying for stay of the execution proceedings on the ground that a declaratory suit bearing No. 1092/2017 is pending against the decree holder, has been rejected.
(2.) The facts of the case are startling. It is also an example of one of such cases where the process of law is abused to the utmost. The plaintiff-respondents instituted SCC Suit No. 3/2004 in the Court of Small Causes for eviction and recovery of arrears of rent against the petitioner. The plaint case was that the premises in dispute was let out to the petitioner by their mother Smt. Satyawati Jauhari. She died on 30.3.2003. The petitioner stopped paying rent, which was stated to be Rs. 2500/- per month plus Rs. 400/- towards electricity charges. The tenancy was terminated by a notice under Section 106 of the Transfer of Property Act, 1882 duly served upon the petitioner on 1.12.2003. The suit was contested by the petitioner alleging that she was in possession of the premises as owner on basis of a Will dated 2.12.2002 executed in her favour by late Satyawati Jauhari. The Court of Small Causes framed a specific issue regarding existence of relationship of landlord and tenant between the parties. While deciding the said issue, it repelled the claim of the petitioner based on Will dated 2.12.2002. The trial Court took note of the fact that the original Will was not brought on record. Apart from it, it was shrouded with suspicious circumstances and was also not proved. The suit for recovery of arrears of rent and for eviction was accordingly decreed by judgment dated 9.3.2012. Aggrieved thereby, the petitioner filed a revision before this Court bearing No. 170 of 2012, which was dismissed by this Court by judgment dated 13.10.2017. This Court, while dismissing the revision took specific note of the fact that the Testamentary Case No. 12 of 2011 filed by the petitioner before this Court was dismissed in default by order dated 12.1.2012. It also took note of the fact that before filing the testamentary case, the petitioner also applied for probate on basis of alleged Will before Additional District Judge, Court No. 3, Ghaziabad, which also was dismissed by order dated 6.1.2011. The court, therefore, held that the order of the District Judge dismissing the probate application operated as res judicata against the peteitioner in all subsequent proceedings including the testamentary case.
(3.) Not deterred by adverse decisions in the above noted cases, the petitioner in order to give fresh lease of life to the litigation instituted a regular suit for declaration of his title being Original Suit No. 1092 of 2017 again claiming right on basis of the same Will. It was followed by an application before the Executing Court under Order 21 Rule 29 CPC for staying the execution proceedings in view of pendency of the civil suit against the decree holders. The Executing Court by impugned order has rejected the said application observing that the decree passed in SCC Suit No. 3/2004 has already attained finality with the dismissal of civil revision filed against the said judgment. The Executing Court has also taken specific note of the fact that the ground on basis of which declaratory suit has been instituted, was raised by the petitioner by filing objections under Section 47 CPC read with Section 151 CPC, but it was rejected by order dated 15.3.2018. The Executing Court did not find it to be fit case where execution of decree should be stayed by taking recourse to Order 21 Rule 29 CPC.;