Mahadev vs Naththu
2022 Latest Caselaw 6292 MP

                             1
         IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                            BEFORE
           HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                     ON THE 27th OF APRIL, 2022

                 MISC. PETITION No. 400 of 2019

     Between:-
1.   MAHADEV S/O GENDARAM GAIKWAD , AGED
     ABOUT 68 YEARS, OCCUPATION: CASTE- KUNBI
     R/O VILLAGE AMDAR, TAH. AND DISTT. BETUL
     (MADHYA PRADESH)

2.   BAKU BAI W/O MAHADEV KUNBI , AGED ABOUT
     55  YEARS, OCCUPATION: CASTE KUNBI R/O
     VILLAGE AMDAR, TAHSI AND DISTT BETUL
     (MADHYA PRADESH)

3.   DHANRAJ S/O MAHADEV KUNBI , AGED ABOUT 34
     YEARS, R/O VILLAGE AMDAR, TAHSI AND DISTT
     BETUL (MADHYA PRADESH)

4.   PARSU S/O MAHADEV KUNBI , AGED ABOUT 36
     YEARS, OCCUPATION: CASTE KUNBI R/O VILLAGE
     AMDAR, TAHSI AND DISTT BETUL (MADHYA
     PRADESH)

5.   CHHOTELAL S/O MAHADEV KUNBI , AGED ABOUT
     32 YEARS, R/O VILLAGE AMDAR, TAHSI AND
     DISTT BETUL (MADHYA PRADESH)

6.   VINOD S/O MAHADEV KUNBI , AGED ABOUT 31
     YEARS, R/O VILLAGE AMDAR, TAHSI AND DISTT
     BETUL (MADHYA PRADESH)

7.   TULSIRAM S/O MAHADEV KUNBI , AGED ABOUT
     25  YEARS, OCCUPATION: CASTE KUNBI R/O
     VILLAGE AMDAR, TAHSI AND DISTT BETUL
     (MADHYA PRADESH)

8.   ASHOK S/O MAHADEV KUNBI , AGED ABOUT 12
     YEARS, OCCUPATION: CASTE KUNBI R/O VILLAGE
     AMDAR, TAHSI AND DISTT BETUL (MADHYA
     PRADESH)

                                                  .....PETITIONER
     (BY SHRI MANOJ KUMAR SANGHI, ADVOCATE )

     AND

1.   NATHTHU S/O GENDARAM GAIKWAD , AGED
     ABOUT 71 YEARS, OCCUPATION: CASTE -KUNBI
     R/O VILLAGE AMDAR, TAH. AND DISTT. BETUL
     (MADHYA PRADESH)

2.   PANDHARI S/O NATHTHU GAIKWAD , AGED
     ABOUT 52 YEARS, OCCUPATION: CASTE KUNBI
     R/O VILLAGE AMDAR, TAH. AND DISTT. BETUL
     (MADHYA PRADESH)
                                      2
3.       NARAYAN S/O NATHTHU GAIKWAD , AGED ABOUT
         31  YEARS, OCCUPATION: CASTE KUNBI R/O
         VILLAGE AMDAR, TAH. AND DISTT. BETUL
         (MADHYA PRADESH)

4.       VISHNU S/O NATHTHU GAIKWAD , AGED ABOUT
         34 YEARS, R/O VILLAGE AMDAR, TAH. AND DISTT.
         BETUL (MADHYA PRADESH)

5.       SARAVAN S/O NATHTHU KUNBI , AGED ABOUT 29
         YEARS, R/O VILLAGE AMDAR, TAH. AND DISTT.
         BETUL (MADHYA PRADESH)

6.       BUDHRAO S/O NATHTHU KUNBI , AGED ABOUT 27
         YEARS, R/O VILLAGE AMDAR, TAH. AND DISTT.
         BETUL (MADHYA PRADESH)

                                                                  .....RESPONDENTS
         (BY SHRI DEVDATT BHAVE, ADVOCATE )

      T h is petition coming on for admission this day, the court passed the
following:
                                      ORDER

With the consent of the parties, the matter is finally heard. B y the instant petition, the petitioners / defendants are challenging the legality, validity and propriety of the impugned order dated 3.1.2019 (Annexure- P/5) passed by the learned 1st Additional District Jude, Betul to the Court of the IInd Additional District Judge, Betul (MP) in civil suit no.2A/1999, whereby the application filed by the respondents / decree holder for execution of the judgment and decree of partition and separate possession beyond the original judgment and decree has been allowed and the Commissioner has been appointed for determination of shares through partition and separate possession.

Learned counsel for the petitioners contended that the Executing court has travelled beyond the judgment and decree by directing Tahsildar Betul to partition the suit land and give separate possession despite no such relief was granted by the learned trial court in view of findings returned against issue no. 3. Learned court below besides having acted beyond judgment and decree has failed to consider and appreciate that the judgment debtor has initiated process of challenging the judgment and decree passed by the Trial court and High court by filing SLP before Hon'ble the Supreme Court. A bare perusal of judgment dated 31.7.2001 would further reveal that in para 20 of the judgment, the learned trial court has expressly stated that partition can only be effected by Revenue court in appropriate pending

proceedings if any and accordingly, relief of separate possession can be prayed for by the plaintiffs in proceedings before the competent Revenue court, therefore also, direction to Tahsildar, Betul vide impugned order dated 3.1.2019 deserves to be quashed. To bolster their contentions, learned counsel for the petitioners has placed reliance in Shivshankar Gurgar vs. Dilip (2014) 2 SCC 465 and S. Bhaskaran vs. Sebastian (Dead) by legal representatives and others (2019) 9 SCC 161.

Learned counsel for the respondents advanced the arguments in support of

the impugned order and also contended that no illegality and irregularity has been committed by the court below while passing the order under challenge. To fortify the contention, he placed reliance in Toran Singh vs. Imrat Singh and others 2012(3) MPLJ, relevant para no. 16 and prayed that the petition be dismissed.

I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. Prima facie it is found that the trial court cannot travel beyond scope of decree / order. Any order passed by executing court by travelling beyond decree / order under execution would render such orders as without jurisdiction. Hence, the judgment cited by learned counsel for the respondents is on different footing and is not applicable in the present case.

In view of above discussion and in the light of the law laid down in S. Bhaskaran (supra), this court is of the considered opinion that the executing court has exceeded its jurisdiction beyond the original judgment and decree. Hence, this petition is allowed and the impugned order dated 3.1.2019 (Annexure- P/5) is hereby quashed. Needless to say that learned executing court shall proceed in the matter in accordance with the decree / order passed by the Court below and shall not travel beyond the scope of decree / order. Consequently, interim order stands vacated.

A copy of this order be sent to the trial court for information and its compliance.

CC as per rules.

(ARUN KUMAR SHARMA) JUDGE JP

Signature Not Verified SAN

Digitally signed by JITENDRA KUMAR PAROUHA Date: 2022.04.29 17:26:28 IST