JUDGMENT :

1. Heard Sri Pankaj Agarwal, learned counsel for petitioner and Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Ramesh Chandra Agrahari, learned counsel for respondents.

2. Present petition has been filed seeking following relief:-

“It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to call for the records of the court below and set aside the impugned order dated 10.04.2023 passed by Additional Judge Small Causes Court No. 2, Kanpur Nagar in Execution Case No. 02/23/2022 and allow the Execution Case No. 206/23/2022 and also allow the instant petition striking of the said execution in its full satisfaction in view of the fact that the tenant-respondent IInd Set had delivered possession to the petitioner in the capacity of the owner and landlord of the shop in question; and/or such other and further order be passed as is expedient in the interest of justice.”

3. Since, only legal question is involved in the present petition, therefore, with the consent of parties, without inviting for affidavits, petition is being decided at the admission stage itself.

4. Brief facts of this case are that Release Application dated 22.07.2008 has been filed by three plaintiffs, which was registered as P.A. Case No. 5 of 2008. During the pendency of the said Release Application, plaintiff No. 1, mother of plaintiff No. 2 and grandmother of plaintiff No. 3 died. The Release Application was ultimately allowed vide order dated 13.01.2020, against which, Rent Appeal No. 16 of 2020 has been filed by tenant-respondent, which was dismissed by the District Judge vide order dated 24.01.2022. The tenant-respondent preferred Writ Petition under Article 227 before this Court, being Civil Misc. Writ Petition No. 1343 of 2022, which was also dismissed by this Court vide order dated 08.03.2022. The order dated 13.01.2020 passed in P.A. Case No. 5 of 2008 has attained finality.

5. Sri Pankaj Agarwal, learned counsel for petitioner submitted that for execution of order dated 13.01.2020, two execution applications have been filed; one by petitioner-plaintiff No. 2 dated 15.10.2022 and another by plaintiff No. 3 dated 02.03.2022. Both the execution applications are still pending for final disposal. It is next submitted that during the pendency of execution proceeding, possession of shop was handed over to plaintiff No. 2, therefore, it is required on the part of Execution Court to close the proceedings, but instead of that, Execution Court has proceeded to pass order dated 21.03.2023 directing respondent/plaintiff No. 2 to hand over the possession of shop to respondent/plaintiff No. 3. He firmly submitted that once the possession is given to any of the landlord, Execution Court has no authority to proceed with the execution proceedings in absence of collusion between tenant or landlord.

6. It is further submitted that said order was challenged before this Court by filing Matters Under Article 227 No. 3373 of 2023, which was disposed of vide order dated 28.03.2023 with direction to the Execution Court/Prescribed Authority to decide both the applications within 10 days from production of certified copy of order. Order dated 28.03.2023 was served upon the Execution Court on 31.03.2023, but at that time, Advocates at Kanpur District Court were on strike, therefore, parties were appeared in person. In the present case, due to strike of Advocates, petitioner-plaintiff No. 2 has sought adjournment vide application dated 06.04.2023, but without hearing counsel for parties, judgment was reserved on 07.04.2023 and ultimately pronounced on 10.04.2023.

7. Learned counsel for petitioner has assailed the impugned order on two grounds; first ground which is taken in Matters Under Article 227 No. 3373 of 2023 that once the possession is handed over to one of the landlord, it is required on the part of Execution Court to close the proceedings. Secondly, impugned order has been passed without hearing petitioner-plaintiff No. 2. In fact his