D.K. Seth, J - (1.) . - On a reference an award was passed by the Court directing deposit of the amount in the Court on account of acquisition of the petitioner's land. The time having expired, the petitioners moved this writ petition seeking payment. Mr. Dasgupta, learned Counsel for the respondent had taken a preliminary objection as to the maintainability of the writ petition. According to him, the decree is executable and as such writ jurisdiction could not be invoked for the purpose of execution of a decree of Civil Court. Mr. Pan, learned Counsel for the petitioners, on the other hand, contends that in two unreported decisions of this Court, direction was given for payment.of the compensation amount and in another case payment was directed to be made. According to Mr. Pan, alternative remedy is not a bar. In appropriate cases direction can be issued.
(2.) After hearing the learned Counsel for the parties, it appears that execution is definitely an alternative remedy and which is efficacious. In the decision in State of U.P. and others v. M\s. Indian Hume Pipe Co. Ltd. reported in AIR 1977 Supreme Court 1132 the Apex; Court had held that alternative remedy is not an absolute bar. Similar view was taken in the decision in Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanva Mahavidyalaya Sitapur (UP.) and others reported in AIR 1987 Supreme Court 2186 . As held in these two decisions cited by Mr. Pan, it is an accepted proposition that alternative remedy cannot be an absolute bar. Be that as it may, in case the Court takes upon itself the responsibility of executing Civil Court's decree in exercise of writ jurisdiction, in that event it would open a flood gate by rendering the writ jurisdiction ineffective and non-functional by reason of unnecessary jam in the process. Except in exceptional cases the discretion of the Court should not be exercised.
(3.) In this case, the decree was passed in 1992 and the petitioners sought to move this writ petition in 1993. The petitioners had a remedy to levy execution. Though, it was open, yet the petitioners came to this Court straightway and the matter remained pending for such a long time. Nowhere from the order sheet it appears that the preliminary objection as to the maintainability of the writ petition was taken and that it was kept open for being agitated at the time of hearing. The matter was kept pending for such long nine years in this Court. At this stage, it is no more open for taking preliminary objection.;