HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 3496 of 2022

Rupam Sunil Abraham & another

….....Petitioners

Versus

Rajan Alexander McGregor & others ….….Respondents

Present:-

Mr. Siddhartha Singh, learned counsel for the petitioners.

Mr. R.C. Arya, learned Standing Counsel for the State.

Mr. Rajeev Singh Bisht, learned counsel for the caveator.

JUDGMENT

Hon’ble Manoj Kumar Tiwari, J.

This is defendants petition against judgment

dated 24.11.2022, passed by Additional Commissioner

Kumaon

Division,

Nainital

in

Revision

No.19/21-

22/46/21-22. By the said judgment, petitioners’ revision

against trial court’s order, rejecting their application

under Order 7 Rule 11 CPC, has been dismissed. The

ground taken for dismissing petitioners’ revision is that

the order passed by trial court in a declaratory suit filed

under Section 229B of U.P. Zamindari Abolition and Land

Reforms Act, 1950 is not challengeable under Section 219

of U.P. Land Revenue Act, 1901 and the revision should

have been filed under Section 333 of U.P. Zamindari

Abolition and Land Reforms Act.

2

2.

Learned revisional court has thereafter gone

into merits of the case by holding that learned trial court

was justified in rejecting petitioners’ application filed

under Order 7 Rule 11 C.P.C., as the question of

genuineness of documents relied upon by defendants can

be decided only after evidence.

3.

Learned counsel for petitioners submits that

approach

adopted

by

the

revisional

court

is

unsustainable, as after holding that revision is not

maintainable, revisional court should not have gone into

merits of the case. He further submits that when the

jurisdiction to entertain revision under Section 333 of

U.P. Zamindari Abolition and Land Reforms Act, lies with

the Additional Commissioner, then merely because some

wrong provision of law is mentioned, the revision cannot

be dismissed. In support of this contention, he has relied

upon the judgment of Hon’ble Supreme Court in the case

of Raja Venkateswarlu & another vs Mada Venkata

Subbaiah & another; (2017) 15 SCC 659. Para 3 of the

said judgment is extracted below:-

“3. But merely because an application for police

protection was filed only under Section 151 CPC

invoking the inherent jurisdiction, it cannot be a

reason for the High Court to reject it and hold that the

application should have been filed under Order 21 Rule

32 CPC. The crucial question is whether the executing

court has jurisdiction. That is not disputed. The only

3

thing is that an exact provision was not invoked. That

by itself shall not be a reason for rejecting the

application (see Municipal Corpn., Ahmedabad v. Ben

Hiraben Manilal, (1983) 2 SCC 422 and T. Nagappa v.

Y.R. Muralidhar, (2008) 5 SCC 633). In case the

executing court has the jurisdiction and has otherwise

followed the procedure under the Rules, the action has

to be upheld. One relevant question is also whether the

judgment-debtor has suffered any injury or whether

any prejudice has been caused to him. If the answer is

in the negative, as in the instant case, the execution

must proceed. The impugned judgment is hence set

aside, the appeal is allowed and the order passed by

the executing court is restored.”

4.

Learned counsel for the petitioners placed

reliance upon another judgment rendered by Hon’ble

Supreme Court in P.K. Palanisamy vs N. Arumugham &

another; 2009 (2) ARC 751. Para 13 of the said

judgment is extracted below:-

“13. A

contention

has

been

raised

that

the

applications filed by the appellant herein having regard

to the decisions of the Madras High Court could not

have been entertained which were filed under Section

148 of the Code. Section 148 of the Code is a general

provision and Section 149 thereof is special. The first

application should have been filed in terms of Section

149 of the code.