Madhya Pradesh High Court
Zubeda Bano vs Smt. Priya on 18 March, 2021
Author: Vivek Rusia
1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
S.A.No.112/2021
(Sheikh Layeek Vs. Smt.Priya and others)
and
S.A.No.113/2021
(Zubeda Bano Vs. Smt.Priya and others)
Indore, Dated 18.03.2021
Shri P.R.Bhatnagar, learned counsel for the appellants.
Shri Umesh Gajankush, learned counsel for the
respondents no.1 and 2.
Heard.
The objectors have filed the present second appeals
against the order dated 23.11.2019 passed by Ist Civil Judge,
Class-II, Barwaha (executing Court) whereby an applications
filed under Order 21 Rules 97 (2) of CPC have been dismissed
and order dated 08.01.2021 whereby the IInd Additional District
Judge, Barwaha have dismissed two first appeals.
2. The facts of the case in short which led to filing of the
present appeals are that respondents no.1 and 2 filed a Civil Suit
No.2A/2013 for declaration, possession of piece of land
measuring 3987.5 Sq.ft situated at Ward No.16, Gopalpura,
Barwaha against Majju, Ateek and Farrah Khan. The suit was
contested by all the above defendants and vide judgment and
decree dated 30.04.2016 the suit was decreed in favour of the
plaintiff.
Digitally signed by REENA JOSEPH
Date: 23/03/2021 17:14:11
3. Being aggrieved by the aforesaid judgment and decree the
defendants preferred a first appeal before the II Additional
District Judge, Barwaha and vide judgment and decree dated
17.05.2019, the appeal was dismissed. Thereafter, the
defendants approached this Court by way of Second Appeal
No.2033/2019 which was dismissed vide order dated
07.08.2019. Hence the judgment and decree dated 17.05.2019
has attained finality.
4. The respondents no.1 and 2 (hereinafter referred to as
decree holders) filed application for execution of judgment and
decree before the executing Court. In the execution proceedings,
the possession warrant was issued by the executing Court and
when the decree holders went to the spot to take possession.
Sheikh Layeek, (brother of defendant no.3 Farrah Khan) and
Smt.Zubeda Bi, (mother of Farrah Khan) resisted the possession
process. Thereafter, they filed their independent applications
under Order 22 Rules 101 and 103 of the CPC in the execution
proceedings. Both the applications came up for final hearing
before the executing Court and vide order dated 23.11.2019, the
learned executing Court has dismissed both the applications.
Thereafter, they preferred two separate first appeal Nos.36/2019
and 37/2019 respectively and vide common order dated
08.01.2021, II Additional District Judge, Barwaha has dismissed
both the appeals. Hence, the present above second appeals
Digitally signed by REENA JOSEPH
Date: 23/03/2021 17:14:11
before this Court.
5. Shri Bhatnagar, learned counsel for the appellants
submits that the executing Court as well as the first appellate
Court both have dismissed the applications summarily without
conducting any enquiry. It is settled law that the proceedings
initiated under Order 21 Rules 97 (2), 101 of CPC are liable to
be decided as suit, therefore, it was incumbent upon the
executing Court to frame the issues, record and evidence and
decide it in accordance with law. In support of his contentions,
he has placed reliance on the judgment passed by the Apex
Court in the case of Silverline Forum Pvt.Ltd. Vs. Rajiv Trust
and another reported in (1998) 3 SCC 723. Hence, these
appeals are liable to be admitted on the following substantial
questions of law:-
"1. Whether the learned trial Court justified
in not conducting any enquiry as enumerated
under Order 21 Rule 97(2) of CPC, before
deciding the application filed by the appellant
under Order 21 Rule 97 of CPC?
2. Whether the legal heirs of Sheikh Rashid
were necessary party in the Civil Suit and the
decree of possession is binding on the legal
heirs of the deceased Sheikh Rashid?
3. Any other question of law which this
Hon'ble Court deems fit may kindly be framed."
6. Shri Gajankush learned counsel for the decree holders
submits that the present appellants/objectors are none other than
mother and brother of Farrah Khan i.e. defendant no.3, who
contested the suit upto the second appeal and lost. At any point
Digitally signed by REENA JOSEPH
Date: 23/03/2021 17:14:11
of time, he did not raise any objection that apart from him, these
appellants are also in possession with him, hence, they are the
necessary parties. Because he has lost upto the second appeal,
therefore, he has projected these two appellants to object the
execution of the decree. This is nothing but a misuse of the
process of law. No independent enquiries are needed in this
case, because the appellants are not the strangers to the
defendants to whom the decree is binding. The first appellate
Court has dealt with this issue and has given a finding in
paragraphs 12 and 13 of its judgment. Hence, no substantial
question of law is involved in these appeals and these appeals
are liable to be dismissed.
I have heard the learned counsel for the parties and
perused the record.
7. So far as the contention of Shri Bhatnagar that the
enquiry ought to have been conducted as to whether the
appellants are in possession or not, since the decree is still under
execution and the possession has not been delivered to the
decree holders on resistance put forth by the present appellants,
therefore, prima facie they are in possession. The trial Court as
well as the first appellate Court have specifically examined the
title of the appellants to remain into possession. They have
failed to produce any independent to establish their title in
support of their claim of possession. Once it has been held that
Digitally signed by REENA JOSEPH
Date: 23/03/2021 17:14:11
defendant no.3-Farrah Khan was an encroacher over the suit
property and the appellants being the brother and mother cannot
have a better status than Farrah Khan, therefore, no detailed or
elaborate enquiry is needed in this case. The appellants who are
resisting the execution of the decree, the burden lies on them to
establish their right and title to remain into possession which
they have failed to produce by any evidence.
8. The Apex Court in the case of Bool Chand (DEAD)
through L.Rs. and others Vs. Rabia and others reported in
(2016) 14 SCC 270 in paragraph 12 has held as under:-
"12. While a genuine petition for execution of a
decree can certainly be considered, the court cannot
be oblivious of frivolous objections being filed
after a decree is passed in long-drawn contested
proceedings. Attempt to deprive the decree-holder
of benefit of such decree should be discouraged by
the Court where such objection is raised. The
impugned order is thus, clearly erroneous and
unsustainable and not a result of sound judicial
approach."
9. In the present case, son and brother of the appellants had
already contested the suit upto the stage of second appeal. When
they lost the appellants are raising objections. They have no
independent right to resist or object the decree. Hence, I do not
find any substantial question of law involved in these appeals.
Hence, the second appeals are dismissed.
10. At this stage Shri Bhatnagar submits that appellants may
kindly be given three months time to vacate the suit property. If
Digitally signed by REENA JOSEPH
Date: 23/03/2021 17:14:11
the objectors file an affidavit before the executing Court that
they shall not object the execution of the decree for a period of
two months, then the executing Court is directed not to issue
possession warrant till 10th May, 2021.
(VIVEK RUSIA)
JUDGE
RJ/
Digitally signed by REENA JOSEPH
Date: 23/03/2021 17:14:11
