Urmila Bai vs Hemraj Rajput
2021 Latest Caselaw 7075 MP

                                                                   1                               MP-1734-2021
                                         The High Court Of Madhya Pradesh
                                                   MP No. 1734 of 2021
                                                     (URMILA BAI Vs HEMRAJ RAJPUT AND OTHERS)


                                 Jabalpur, Dated : 08-11-2021
                                       Shri Anvesh Shrivastava, counsel for the petitioners.

                                       Heard on the question of admission.
                                       Petitioners have filed this petition under Article 227 of the Constitution
                                 of India questioning the validity and propriety of the order dated 05.04.2021
                                 (Annexure P/12) passed in Execution Case No. A/290004/2008 by XXIV

                                 Civil Judge, Class-I, Jabalpur rejecting the application filed by them under
                                 Order 21 Rule 26 of CPC seeking stay of the execution proceedings.
                                       The respondent No. 1/plaintiff filed a civil suit bearing Civil Suit No.

44-A/2005 before the Civil Court for possession and mandatory injunction. The said suit was decreed by the Court vide judgment and decree dated 30.10.2007. The said judgment and decree was assailed by some of the respondents/defendants by filing Civil Appeal No.15-A/2008, which was dismissed on 31.07.2009 affirming the judgment and decree passed on 30.10.2007. The said respondents/defendants thereafter preferred a second

appeal i.e. SA No. 1390/2009 before the High Court challenging the judgment passed by the lower appellate court and also the judgment and decree passed by the trial court. The said second appeal was also dismissed on 27.02.2015. Thereafter, the judgment and decree, which was passed on 30.10.2007, was put in execution. In execution proceedings, the present petitioners filed an application under Order 21 Rule 97 of CPC praying therein that the judgment and decree be declared as null and void, but the same was rejected by the Executing Court vide order dated 26.08.2017. The petitioners/judgment- debtors being aggrieved by the order dated 26.08.2017, preferred an appeal i.e. Civil Appeal No.132/2017, which was also dismissed vide order dated 20.12.2017. Thereafter, petitioners assailed the order dated 20.12.2017 before the High Court by filing Second Appeal No. 468/2018, which was also Signature Not Verified SAN dismissed by the High Court by order dated 13.02.2020. The petitioners Digitally signed by RAGHVENDRA SHARAN SHUKLA Date: 2021.11.12 14:35:14 IST 2 MP-1734-2021 have challenged the order dated 13.02.2020 by filing SLP before the Supreme Court, but, since the said appeal could not come up for hearing, they filed an application under Order 21 Rule 26 of CPC before the Executing Court seeking stay of execution of judgment and decree granted, which has also been rejected by the impugned order. The petitioners have, therefore, filed

this petition challenging the said order.

Learned counsel for the petitioners submits that petitioners have preferred SLP before the Supreme Court in which although Diary Number has been granted, but, the appeal has not been listed because of outbreak of COVID-19 virus. Therefore, the petitioners moved an application under Order 21 Rule 26 of CPC before the Executing Court seeking stay of execution proceedings on the ground that if the stay is not granted and the decree is executed, the very purpose of filing the appeal before the Supreme Court would be frustrated.

Considering the arguments advanced by the learned counsel for the petitioners, in my opinion, merely because the judgment and decree is under challenge before the Supreme Court does not mean that even in absence of any protection granted by the Supreme Court, the Executing Court can grant interim protection in exercise of power under Order 21 Rule 26 of CPC. It is an exceptional power given to the Executing Court for staying the execution proceedings under special circumstances or on sufficient cause being shown. Here in this case, merely because the SLP has been preferred by the petitioners/judgment-debtors despite the fact that the original judgment and decree has been passed somewhere in the year 2007 does not mean that the execution proceedings shall be stayed. Petitioners being judgment-debtors lost in every forum and even second appeal filed in the High Court against the judgment and decree has also been dismissed.

It is apt to mention here that the decree holder has been granted decree for obtaining possession and he is fighting for obtaining possession of the

Signature Not Verified SAN suit premises for a long time. The Executing Court has rightly rejected the

Digitally signed by RAGHVENDRA SHARAN SHUKLA Date: 2021.11.12 14:35:14 IST 3 MP-1734-2021 application filed by the petitioners, although reason assigned for rejecting the application does not appear to be proper, but, that does not frustrate the very object of the respective provision under which discretion can be exercised by the Executing Court granting stay of execution proceedings.

Learned counsel for the petitioners, during the course of arguments, has failed to demonstrate any sufficient cause so as to stay the execution proceedings, therefore, this Court does not find any irregularity in the order passed by the Executing Court and is also not inclined to interfere in the impugned order.

In view of the discussion made hereinabove, the petition being without any substance is hereby dismissed.

(SANJAY DWIVEDI) JUDGE

RAGHVENDRA

Signature Not Verified SAN

Digitally signed by RAGHVENDRA SHARAN SHUKLA Date: 2021.11.12 14:35:14 IST