Smt Vilaso vs Kedar Kushwah
2021 Latest Caselaw 4598 MP

   1      THE HIGH COURT OF MADHYA PRADESH
                         MP No.2290/2021
       Smt. Vilaso and another Vs. Kedar Kushwah and others

Gwalior, Dated:24/08/2021

        Shri Saurabh Bhelsewale, Advocate for petitioners.

        Shri Gaurav Mishra, Advocate for respondents no.1 and 2.

This Miscellaneous Petition under Article 227 of the

Constitution of India has been filed seeking the following reliefs:-

"(i) That, it is humbly prayed that Order passed by Learned Court below dated 24.06.2021 (Annexure P/1) may kindly be quashed.

(ii) That, Learned Court below may kindly be directed to execute the Judgment & Decree dated 14.08.19 because there is no stay order passed by the Hon'ble High Court in F.A. no.1982/19.

(iii) That, any other relief to which this Hon'ble Court may deem fit may also be directed to be extended in favour of the petitioner in the interest of justice.

(iv) That the costs of this petition be also awarded to the petitioner."

It is submitted by the counsel for the petitioners that by

judgment and decree dated 14/8/2019 passed by Fourth Additional

District Judge, Dabra, District Gwalior in Regular Civil Suit

No.1A/2016 the following decree has been passed:-

01- ;g ?kksf"kr fd;k tkrk gS fd oknhx.k izfroknh Øekad 01 o 02 e`rd euksgjyky ds oS/k mRrjkf/kdkjh gSaA 02- Hkkjrh; LvsV cSad 'kk[kk vkarjh esa e`rd euksgjyky dh dqy tek /kujkf'k esa 50 izfr'kr dh jkf'k foyklks ckbZ izkIr djus dh vf/kdkfj.kh gksxhA 'ks"k 50 izfr'kr jkf'k esa oknhx.k o izfroknh Øekaad 01 yxk;r 02 leku Hkkx ;kuh fd [email protected] Hkkx dh jkf'k izkIr djus ds vf/kdkjh gksaxsA 03- oknhx.k vkSj izfroknh Øekad 01 o 02 izfroknh Øekae 05 ;kuh iksLVvkWfQl vkarjh esa tek /kujkf'k 50 gtkj :i;s leku Hkkx ;kuh fd [email protected] izkIr djus ds vf/kdkjh gksaxsA 04- izfroknh Øekad 03 o 05 ds laca/k esa bl vk'k; dh LfkkbZ fu"ks/kkKk tkjh dh tkrh gS fd tc rd e``rd euksgjyky dh /kujkf'k izkIr djus ds fy, U;k;ky; }kjk izek.k i= tkjh 2 THE HIGH COURT OF MADHYA PRADESH MP No.2290/2021 Smt. Vilaso and another Vs. Kedar Kushwah and others

ugha fd;k tkrk gS rc rd mDr jkf'k oknhx.k ds Hkkx dh vkgfjr ugha dh tk ldsxhA 05- vfHkHkk"kd 'kqYd izekf.kr gksus dh n'kk esa vFkok rkfydk vuqlkj tks Hkh U;wu gks ns; gksxhA rn~~uqlkj t;i= dh jpuk dh tkosA

It is submitted that the petitioners moved an application for

execution of the said decree, however, the Executing Court/Trial

Court by order dated 24/6/2021 has directed that since the record of

the Trial Court has been sent to the High Court in FA No.1982/2019,

therefore, the decree cannot be executed. It is submitted that mere

filing of an appeal will not operate as stay unless and until a specific

order of stay is passed by the Appellate Court and, therefore, the

Executing Court/Trial Court has committed a material illegality by

rejecting the application filed by the petitioners.

Today, FA No.1982/2019 was also listed and by a separate

order, this Court has directed that 50% of the amount deposited in the

account of Late Manoharlal, as directed by the Trial Court, shall be

released in favour of petitioner No.1 and the direction with regard to

remaining 50%, which is to be distributed amongst the plaintiffs and

defendants no.1 and 2, shall remain stayed.

In view of the order passed by this Court in FA No.1982/2019,

the order dated 24/6/2021 passed in Case No.16A/2019 by the Fourth

Additional District Judge, Dabra, District Gwalior is hereby set aside.

The Trial Court/Executing Court is directed to proceed further with 3 THE HIGH COURT OF MADHYA PRADESH MP No.2290/2021 Smt. Vilaso and another Vs. Kedar Kushwah and others

the execution of the decree, so far as it relates to release of 50% of

the amount deposited in the account of Late Manoharlal in favour of

the petitioner No.1.

With aforesaid observations, the petition is finally disposed of.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.08.26 11:03:11 +05'30'