Dinesh vs Nandram S/O Shri Sonpal De. Thr. ...
2021 Latest Caselaw 8220 MP

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              HIGH COURT OF MADHYA PRADESH,
                      BENCH AT GWALIOR
                           MP-1816-2021
               (Dinesh & Ors. Vs. Nandram & Ors.)


Gwalior, Dated : 04/12/2021

      Shri N.K. Gupta, learned senior counsel with Shri Ravi

Shankar Gupta, learned counsel for the petitioners.

      None for the respondents.

The brief facts giving rise to filing of this petition are that in

civil suit filed in the year 1964, a decree was granted in the year

1995 for possession of the land bearing Khasra survey Nos.203,

204, 298, 299, 300, 301 & 302. After the decree attained finality,

the petitioners/decree holders filed execution petition which is

presently pending before the Court of 12 th Civil Judge, Class-I,

Gwalior (M.P.). The Execution Court vide order dated

16/03/2021 issued warrant of possession only for three survey

Numbers i.e. 300, 301 and 302 and refused to issue warrant of

possession for remaining survey numbers with the observations

that the some suit is pending regarding these plots where status

quo has been directed by the Civil Court, as such, if warrant of

possession is issued, purpose of filing of civil suit will be

frustrated. Being aggrieved by the said order, the

petitioners/decree holders have filed this petition.

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-1816-2021 (Dinesh & Ors. Vs. Nandram & Ors.)

None appeared on behalf of the respondents who have

already been served.

On the prayer made on behalf of the petitioners, service

against rest of the respondents is dispensed with as none of the

judgment debtors was present before the executing Court.

Mr. N.K. Gupta, learned senior counsel appearing on behalf

of the petitioners submits that the decree passed in favour of the

petitioners has attained finality. The decree holders are deprived

of the fruits of their suit which was filed in the year 1964 i.e. even

after lapse of span of 57 years. The Executing Court was duty

bound to issue warrant of possession in compliance of the decree

and it was not required to take notice of other litigation

particularly without being referred by the respondents/judgment

debtors. The execution of decree was nor stayed by any competent

forum. Otherwise also, there was no stay with regard to the suit

property. Even when the judgment debtors were not present, the

Executing Court suo motu gone beyond its jurisdiction and

declined to issue the warrant of possession for whole of the suit

property. The impugned order is per se illegal and deserves to be

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-1816-2021 (Dinesh & Ors. Vs. Nandram & Ors.)

set-aside. The Executing Court should be directed to get the

decree executed within time bound manner.

As indicated above, neither the respondents appeared before

the Executing Court nor before this Court.

Heard. Considered.

It is well settled legal position that the Executing Court is

duty bound to execute the decree in letter and spirit. It cannot go

beyond the decree. It can only entertain the objections permissible

under the provision of Order 21 of CPC. The Executing Court

suo motu or otherwise cannot defer the execution of the decree.

On perusal of the record, it is found that the decree in

question has attained finality, hence, the Executing Court was

obliged to execute the decree in expeditious manner. It has issued

warrant of possession for three survey numbers and declined to

issue warrant of possession for above mentioned four survey

numbers on the premise that some status quo has been directed in

other civil suit with regard to these survey numbers but as stated

by learned senior counsel at bar that there was no stay on

execution of the decree in question. The judgment debtors were

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-1816-2021 (Dinesh & Ors. Vs. Nandram & Ors.)

not present before it. Other suit or legal proceedings shall take

their own course as per law but even without any objection by

judgment debtors, the Executing Court Suo motu has partly stayed

the execution beyond its authority. Thus, the impugned order is

per se illegal and without jurisdiction, therefore, this petition is

allowed and the impugned order passed by the Executing Court is

set-aside.

Since the matter is already inordinately delayed, therefore,

the Executing Court shall take up the matter on priority and

ensure that execution of the decree is made fully and finally in

expeditious manner.

Certified copy/e-copy as per rules/directions.

(SATISH KUMAR SHARMA) JUDGE

rahul Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0c de4dee473fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4A B9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2021.12.06 20:06:17 +05'30'