Prakash S/O Vadrichand Teli Thr. ... vs Smt. Nirmala
2021 Latest Caselaw 1361 MP

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  HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
                      M.P.No.1278/2021
        Prakash and others Vs. Smt. Nirmala and others
Indore, Dated:-7.4.2021
       Shri Mangesh Bachawat, learned counsel for the
petitioners.
       Heard on the question of admission and interim
relief .
       The petitioners/plaintiffs have filed the present
petition under Article 227 of the Constitution of India
against the order dated 11.12.2019 passed by
Additional Civil Judge, Class I, Sitamou, District
Mandsaur and order dated 25.1.2021 passed by Third
Additional District Judge, Mandsaur; whereby, the
application       for        temporary       injunction      and
Miscellaneous Appeal, have been dismissed.
       The facts of the case, in short, are as under:-
     (I)The plaintiffs have filed the present suit
     through the power of attorney holder for the
     relief of specific performance of a contract
     against     the    defendants       alongwith     the
     application under Order 39 Rule 1 and 2 of
     the       Code     of     Civil     Procedure,1908
     (hereinafter to be referred to as "CPC").
     (II)According       to     the      plaintiffs   vide
     agreement to sale dated 21.3.2003, he
     obtained the possession of a suited house
     and paid the entire sale consideration. Now
     the said house has been put to auction in
     Execution case No.77/2013 for recovery of
     a money decree. Since he has acquired the
     right over the suit property by virtue of the
     part performance of the contract, therefore,
     the suit house cannot be auctioned in
     execution proceedings and proceedings are
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 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
                     M.P.No.1278/2021
       Prakash and others Vs. Smt. Nirmala and others
    liable to be stayed during the pendency of
    the suit.


         Except for defendant no.6, the other defendants
are exparte in the suit. Defendant no.6 has filed the
reply and opposed the aforesaid application. Vide
order dated 11.12.2019, the learned Civil Judge has
dismissed the application for a temporary injunction.
Thereafter the plaintiffs preferred a miscellaneous
appeal C.M.A.No.9/2020 under Order 43 Rule 1 of
CPC that to has been dismissed vide order dated
25.1.2021

. Hence, the present petition before this Court.

I have heard learned counsel for the petitioner at length.

According to the plaintiffs, Kanhaiyalal purchased the suit property i.e. house no.219 ward No.-4 area 16.91/4.0 Sq mt from Lalchand vide sale deed dated 21.3.2003 in Rs.26,000/-. Thereafter Kanhaiyalal agreed to sell the above property to the present petitioners on 21.3.2003 in Rs.1,46,100/-. They had paid the entire sale for consideration and the possession was given on 21.3.2003 to them. One Ramprasad has initiated execution proceedings against Kanhaiyalal and Modiram in the year, 2013 and the same is pending before the First Additional District Judge as Execution Case No.77/2013. The auction notice was published on 1.4.2015. The present petitioners appeared in the aforesaid execution proceedings and filed an application under Order 21 Rule 57 and 58 of the Civil Procedure Code on 7.7.2015.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.P.No.1278/2021 Prakash and others Vs. Smt. Nirmala and others The learned Executing Court has dismissed the said application on 2.2.2018 which has not been challenged by the petitioners by way of Appeal or Revision.

After the dismissal of the aforesaid application, the plaintiffs/petitioners have filed the present suit for specific performance of contract against the legal heirs of Kanhaiyalal along with an application for stay of the execution proceedings No.77/2013. Both the Courts below have rejected the application for a temporary injunction on the ground, that after rejection of the application under Order 21 Rule 57-58 of CPC was dismissed on 2.2.2018, the present application filed under Order 39 Rule 1 and 2 of CPC is not maintainable by virtue of proviso (b) Rule 2(2) of Order 39 of CPC and Section 41 of the Specific Relief Act.

The learned Courts below have also observed that the plaintiffs came to know about the pendency of the execution of the proceedings in the year 2015 and filed the suit after a period of 3 years.

By way of the present suit, the plaintiffs are seeking a decree of specific performance of a contract dated 21.3.2003 after a period of 15 years without pleading continuous, readiness and willingness. During the lifetime of Kanhaiyalal, the plaintiffs did not serve any notice or filed a suit for the performance of the contract/ agreement. Since there is no assignment of any right and title in favour of the petitioners by the judgment debtor therefore the petitioners cannot said to have entered into the shoes of the judgment debtor .

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.P.No.1278/2021 Prakash and others Vs. Smt. Nirmala and others Therefore, both the subordinate Courts have not committed any error while rejecting the application filed under Order 39 Rule 1 and 2 of CPC and dismissing the Miscellaneous appeal.

The petition is devoid of substance and merits and hence stands dismissed.

(Vivek Rusia) Judge Digitally signed das by REENA PARTHO SARKAR Date: 2021.04.08 11:01:57 +05'30'