The court has the discretion to remand a matter under Order IX Rule 13, even if the parties have already put in appearance in the suit and deliberately avoided participation in the suit proceedings.

Court No. - 37

Case :- MATTERS UNDER ARTICLE 227 No. - 9629 of 2022

Petitioner :- Geeta Srivastava

Respondent :- Jayesh Kumar Verma And Another

Counsel for Petitioner :- Sachin Mishra,Bala Nath

Mishra,Ram Vishal Mishra

Hon'ble Ajit Kumar,J.

Heard Sri R.V. Mishra learned counsel for the petitioner and

perused the record.

By means of this petition filed under Article 227 of the

Constitution of India, petitioner is aggrieved against the order

dated 24th August, 2022 whereby the court of appeal has set

aside the order passed by the trial Court rejecting the

application filed under Order IX Rule 13 and remitting the

matter back to the trial Court to decide afresh.

Learned counsel for the petitioner has submitted that the order

of remand is bad in law as the parties had already put in

appearance in the suit and deliberately avoided participation in

the suit proceedings. He submits that petitioner is a valid

tenure-holder of the land in question by virtue of sale-deed and

the respondent- defendants are interfering in the matter by

getting it lingered on to defeat the very decree passed in favour

of the petitioner on the basis of certain sale-deeds obtained from

Power of Attorney holder. It is submitted that the Execution

Case No. 16 of 2007 is pending and the Executing Court is not

proceeding with the execution of the case merely because the

matter has been remanded under Order IX Rule 13 to decide

afresh.

Having heard learned counsel for the petitioner and perused the

record, at the first instance I do not find any justification to

interfere in the order passed by the Court of appeal in

remanding the matter under Order IX Rule 13 as the petitioner

would have sufficient opportunity to contest the application

filed by the contesting respondents under Order IX Rule 13.

However, insofar as the petitioner's apprehension that the

respondents in any way will try to interfere with his possession,

I find there being no stay order in the pending proceedings

under Order IX Rule 13 so there will be no reason for the

Executing Court not to proceed with the Execution Case No. 16

of 2007. Any interim protection granted at this stage, during

pendency of application under Order IX Rule 13, will certainly

amount to interference with the decree that already stands in

favour of the petitioner. Petitioner is always at liberty to get the

Execution Case No. 16 of 2007 expedited and decided as mere

pendency of application under Order IX Rule 13 cannot amount

to stay over and above the proceedings of execution of decree

already standing in favour of the petitioner.

Subject to what has been observed above, this petition is

consigned to record.

Order Date :- 10.1.2023

Shiraz

Digitally signed by :-

SHIRAZ ALI

High Court of Judicature at Allahabad