Lalit Kumar vs Smt. Tejubai
2021 Latest Caselaw 4453 MP

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     HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
      (SINGLE BENCH: HON'BLE Mr JUSTICE VIVEK RUSIA)
              Miscellaneous Petition No.2389/2021
                   (Lalit Kumar V/s Tejubai)
Date:18.08.2021:

       Shri V.K.Jain learned senior counsel with Shri Divyansh Luniya,
learned counsel for the Petitioner.
       Heard on the question of admission and interim relief.
                                ORDER

The petitioner/Objectors have filed the present petition under Article 227 of the Constitution of India against the order dated 19.07.2021 whereby the executing court has declined to stay the executing proceeding.

2. Facts of the case in short are as under: -

(i). Respondent-Tejubai (plaintiff/decree holder) filed a civil suit No.24-A of 1996 seeking partition and 1/2 share in the properties left by Dhanna (father-in-law) and Hudkibai (mother-in-law). Before filing the suit Dhanna had sold some part of the land and house to defendant s nos.4 and 5 Ghanshyam and Piru hence they were impleaded as defendants NO 4&5 in the suit. Vide judgment and decree dated 29.06.1996 the suit was decreed in the favour of Smt. Tejubai declaring her owner of 1/3rd share in a land bearing survey Nos.159/1, 102/2 and 182/2 total area 4.260 hectares. The sale deed executed by defendant no.1 in favour of respondents nos.4 and 5 have been declared void to the extent of 1/3rd share of the plaintiff: Smt. Teju Bai.

(ii). Being aggrieved by the aforesaid judgment and decree the defendant nos.4 and 5 (Ghanshyam and Piru) filed a First Appeal No. 142/1996 before this High Court. At the time of final argument, a consensus arrived between appellants (Ghanshyam and Piru) and plaintiff and accordingly vide judgment dated 10.05.2010 the first appeal was disposed of by modifying the judgment and decree to the extent that the suit filed by the plaintiff would stand decreed but the

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said decree as per the share of the plaintiff would only be executable from the remaining properties in the hand of Dhanna and Hudkibai without affecting the sale deed dated 23.07.1990. The plaintiff has also been given liberty to set up a plea for enlargement of her share in an execution proceeding on account of the death of Dhanna.

(iii). After the aforesaid judgment the plaintiff /Smt. Tejubai has filed an execution proceeding.

(iv). During the pendency of the appeal Dhanna died and in execution proceedings, Hudkibai also died, therefore, the plaintiff becomes the exclusive owner of the entire property left by Dhanna and Hudkibai except to the land sold to the defendant nos.4 and 5.

(v). In execution proceedings Executing Court has directed the collector for partition of share as per the provisions of Order 20 Rule 18 of the Code of Civil Procedure,1908.

(vi). After passing the aforesaid order the present petitioners have filed an objection in the execution proceeding vide application under sections 47, 54 and section 151 of the C.P.C. and Order 7 Rule 11 of the C.P.C on the pretext that they had purchased some part of the suit land from Dhanna during his lifetime. The petitioners have also filed an application under section 151 of the Code of Civil Procedure,1908 for the stay of the execution proceeding .

(vii). According to the petitioners vide registered sale deed dated 03.10.1994 late Dhanna had sold some part of the land of survey no. 282/2 and vide registered sale deed dated 11 January,1995 Dhanna had sold another part of land bearing Survey No.282/2 to Ratanlal and thereafter 0.004 hectare land of survey no.282/2 to Shri Ram Dev Mandir vide sale deed dated 20.08.1996, hence they are the legal representative of Dhanna and before deciding their right and title in the property the partition proceeding pending before the Tehasildar are liable to be stayed. The aforesaid application for stay was opposed by the decree-holder: Smt. Tejubai and vide order dated

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19.07.2021 the learned court has rejected the application and fixed the case for the final adjudication of the main application. Being aggrieved by the aforesaid order the present petition before this Court.

3. Shri Veer Kumar Jain, learned senior counsel submits that the executive court is liable to decide the issue as to whether in an execution proceeding a decree of partition under Order 20 Rule 18 of the CPC,1908 the Tehsildar can travel beyond the decree and re- determined the share of the decree-holder? Learned Executing court is going to decide whether a purchaser of the property either prior or during the pendency of the partition suit can be a representative of the judgment debtor thus party to the suit and execution proceeding? It is further submitted that during the pendency of appeal and execution proceedings both the judgment debtor Dhanna and Hudkibai had died and Plaintiff has become the exclusive owner of their share hence no partition is required because the share of defendant nos. 4 and 5 had already been ascertained and became final therefore, no partition is required under Order 20 Rule 18 of the CPC. Hence the proceeding before the revenue authorities ought to have been stayed instead of rejecting the application. In support of his contentions, Shri Jain has placed reliance on the judgment passed in case of Bhuyan Shyam Sunder Mohapatra and Ors. V/s. Nilakantha Das and Ors. AIR 1956 Orissa 165 and in case of Gangabai Gopaldas Mohata V/s Fulchand, AIR 1997 SC 1812 that the transferee of the land or suit property is a representative of a judgment debtor.

I have heard the learned counsel for the petitioner and perused the record.

4. As per section 47 of the code of civil procedure,1908 all the questions arising between the parties when the decree was passed or

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their representatives and relative of the execution shall be determined by executing the decree or not by the separate suit. Shri Jain has submitted that as per sub-section 3 of section 47 where a question arises as to whether any person is or is not the representative such question shall for the purpose of this section be determined by the Court. There is no quarrel about the aforesaid provision but there is an explanation No.1 to the above section and according to which for the purpose of this section plaintiff whose suit has been dismissed and a defendant against whom the suit has been dismissed are parties to the suit. As per explanation No.2 the purpose of this section the purchaser of property at a sale in execution of a decree shall be deemed to be a party in a suit in which a decree is passed therefore, the purchaser who purchases the property at a sale in execution of a decree shall be deemed to be a party. The legal representatives defined in section 50 of the C.P.C. and according to which where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passes to execute the same against the legal representative of the decree and as per sub- section 2 where a decree is executed against such legal representative he shall be liable only to an extent to the property to a decree which has come to his hand.

For the sake of the argument if the petitioners are claiming to be the legal representative of the judgment debtor i.e. Dhanna then the decree under execution is binding on them and the said decree had attained finality. Therefore, unless there is a stay by the higher court in an appeal the execution proceedings are not liable to stay. Admittedly the Dhanna sold the property to the present objectors on 11.01.1995 and 20.08.1996 i.e. after filing the suit and he participated in the suit proceedings but did not inform the court therefore, the principle of lis pendens would not apply. The Objectors

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cannot be a party to the suit proceedings because they purchased the property during the pendency of the suit and did not apply under Order 1 Rule 10 of the CPC,1908.

5. So far as the provisions of Order 20 Rule 18 of the CPC,1908 are concerned, where a court passes a decree for partition of a property or separate possession of the share then shall direct the Collector to make such partition or separation. Here the separation is required to be done between the plaintiff and the defendants nos.4 and 5 as the judgment passed by this Court in the first appeal hence, such proceedings are not liable to be stayed.

6. Hence no interference is called for with the impugned order, however it is made clear that any observations made hereinabove are to decide this petition and the same shall not come in the way of deciding the main application filed by the petitioners.

7. The Miscellaneous petition is finally disposed of, no order as to cost.

(VIVEK RUSIA) JUDGE Ajit

AJIT Digitally signed by AJIT KAMALASANAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE,

KAMALA postalCode=452001, st=Madhya Pradesh, 2.5.4.20=156c9cedca1b74d671db9f220a5e3e d6cba241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D 61A1EE901C09EF29,

SANAN serialNumber=7F0BEE2D78BD57DA058F324 7441C87E7E0817FB61F5E2ABCAEE63CAAA7 B3B9FF, cn=AJIT KAMALASANAN Date: 2021.08.23 14:43:52 +05'30'