Munni Bai vs Murarilal
2021 Latest Caselaw 6758 MP

                                  1                                 MP-3285-2021
        The High Court Of Madhya Pradesh
                   MP-3285-2021
                 (MUNNI BAI AND OTHERS Vs MURARILAL AND OTHERS)

2
Indore, Dated : 23-10-2021
      Heard through Video Conferencing.
      Shri Rishiraj Trivedi, learned counsel for the petitioners.
      Heard on the question of admission.
      The petitioners have filed the present petition under Article 227 of the
Constitution of India being aggrieved by order dated 16.3.2021 whereby the

learned 1st Civil Judge, Class-I/Executing Court has dismissed the application
filed u/s. 151 of the C.P.C.
      Facts

of the case, in short, are as under :

Respondent No.1/plaintiff had filed the suit against respondents No.2 to 5 u/s. 12(1)(a, (b), (e) and (m) of the M.P. Accommodation Control Act. Vide judgment dated 28.10.1999 the suit was dismissed. The appeal (RCA No.3A/1999) preferred against the aforesaid judgment was also dismissed vide judgment dated 16.4.2003. Thereafter, the plaintiff filed S.A. No.676/3003 before this Court. This Court vide judgment dated 11.8.2010

decreed the suit u/s. 12(1)(a) of the M.P. Accommodation Control Act.

After passing of the aforesaid judgment by this Court, the plaintiff/decree holder initiated the execution proceedings. A possession warrant was issued and the possession of part of the suit premises was handed over to the decree-holder. The plaintiff/decree-holder filed an application under Order 21 Rule 35 of C.P.C. on 10.3.2017 alleging that some part of the suit accommodation is in possession of Munnibai and Harish and vacant possession of the said part has not been handed over to him.

The petitioners came to know about the aforesaid proceedings and approached the Executing Court by filing an application u/s. 151 of C.P.C. seeking adjudication of their objection under the provisions of Order 21 Rule 97 of C.P.C. The aforesaid application was opposed by the plaintiff/decre-

2 MP-3285-2021 holder by submitting that in the civil suit Kanhaiyalal had filed an application under Order 1 Rule 10 of C.P.C. which was rejected vide order dated 5.12.1994 that he is not a necessary party being a sub-tenant and the said order has not been challenged by Kanhaiyalal till date, therefore, the present petitioners being the legal heirs of Kanhaiyalal have no right to object the execution of the decree. Munnibai and Harish had filed Misc. Civil Case

No.3/2017 under Order 21 Rule 97 read with Section 151 of C.P.C. which has already been dismissed vide order dated 4.1.2020, hence the present application has been filed malafidely and not maintainable on the principle of res judicata. In view of the aforesaid reply/objection, learned Executing Court vide order dated 16.3.2021 has dismissed the application filed by the petitioners u/s. 151 of C.P.C., hence the present Misc. Petition before this Court.

Shri Rishiraj Trivedi, learned counsel for the petitioners, submits that although the petitioners have filed the application/objection under the wrong provisions of Section 151 of C.P.C., but as per the contents of the application, same ought to have been considered under the provisions of Order 21 Rule 100 of the C.P.C. Learned Executing Court has dismissed the application summarily whereas the same ought to have been decided like a suit which will give right to the petitioners to file an appeal.

The aforesaid objection taken by the petitioners is absolutely misconceived. The petitioners are the legal heirs of Kanhaiyalal who had already filed an application under Order 1 Rule 10 of C.P.C. seeking impleadment as defendant in the suit on the ground of sub-tenancy, but the said application had been dismissed vide order dated 5.12.1994, therefore, the petitioners being the legal heirs of Kanhaiyalal have no right to object the execution proceedings on the ground of sub-tenancy. The Court has also observed that the petitioners had already filed an objection by way of Misc. Civil Case No.3/2017 which has been dismissed vide order dated 4.1.2020 and against which no appeal has been filed, therefore, the present objection 3 MP-3285-2021 filed u/s. 151 of C.P.C. has rightly been dismissed by the learned Executing Court. Once the decree has been passed in favour of the decree-holder, then he is entitled for the fruits of the decree. All such type of objections are not required to be considered as held by the apex Court in the case of Bool Chand V/s. Rabia & others : (2016) 14 SCC 270. Hence, the present petition being devoid of any merit and substance deserves to be dismissed.

Accordingly, this petition is dismissed summarily.

(VIVEK RUSIA) JUDGE Alok Digitally signed by ALOK GARGAV Date: 2021.10.25 14:56:43 +05'30'