Madhya Pradesh High Court
Smt. Karuna Gehlot vs Manikchand (Dead) Through His ... on 5 December, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 5 th OF DECEMBER, 2022
MISC. PETITION No. 4455 of 2022
BETWEEN:-
SMT. KARUNA GEHLOT W/O SHRI HARINARAYAN
GEHLOTH, AGED ABOUT 60 YEARS, OCCUPATION:
AGRICULTURIST HOUSE NO.72 BAGHIRA APARTMENT
E-5 ARERA COLONY BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SMT. JUNE CHOUDHARY - ADVOCATE)
AND
1. MANIKCHAND (DEAD) THROUGH HIS LEGAL
REPRESENTATIVE SURESHCHANDRA ATRIPATHI
S/O SHRI SHALIGRAM TRIPATHI, AGED ABOUT 67
Y E A R S , H.NO. 84 GAYATRI VIHAR
BAGHMUGALIYA KATRA HILLS BHOPAL
(MADHYA PRADESH)
2. NARESH KUMAR S/O SHRI RAMDAYAL, AGED
ABOUT 55 YEARS, R/O VILLAGE GAJJU PIPLIYA
POST MANDIDEEP TAHSIL GOUHARGANJ
DISTRICT RAISEN (M.P.) (MADHYA PRADESH)
3. SURESH KUMAR S/O SHRI RAMDAYAL (DEAD)
THROUGH LEGAL REPRESENTATIVES SMT.
RANIBAI W/O LATE SHRI SURESH KUMAR R/O
VILLAGE GAJJU PIPLIYA POST MANDIDEEP
TAHSIL GOUHARGANJ DISTRICT RAISEN (M.P.)
(MADHYA PRADESH)
4. SACHIN KUMAR S/O LATE SHRI SURESH KUMAR
R/O VILLAGE GAJJU PIPLIYA POST MANDIDEEP
TAHSIL GOUHARGANJ DISTRICT RAISEN (M.P.)
(MADHYA PRADESH)
Signature Not Verified
SAN 5. DINESH KUMAR S/O SHRI RAMDAYAL, AGED
ABOUT 55 YEARS, NOT MENTION (MADHYA
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.12.08 19:16:37 IST
PRADESH)
2
.....RESPONDENTS
(SHRI PANKAJ WAGHMODE - ADVOCATE FOR RESPONDENT NO. 1 (a) )
This petition coming on for admission this day, th e court passed the
following:
ORDER
This Miscellaneous petition is filed by the objector being aggrieved of
order dated 28/04/2022 passed by the learned 2nd Civil Judge Class-I,
Gauharganj, District Raisen in Execution Case No. 1A/2015 allowing an
application filed by respondent no. 1 (a) under Order 21 Rule 35 and Rule 36 of
the Code of Civil Procedure to substitute his name in place of the judgment
creditor (wrongly mentioned by the petitioner as judgement debtor) and pursue
the execution proceedings on the strength of the unregistered will executed by
the original plaintiff decree holder Manikchand.
Smt. June Choudhary submits that present petitioner purchased 12 acres
of land contained in survey no. 20, 20/1, 20/2, 20/3 and 35 measuring 12.75
acres from one Smt. Malti Sakalle, Smt. Shailya Sakalle and Neha Sakalle vide
registered sale deed dated 29/03/2008 and she is cultivating possession of the
said land.
It is submitted that allegation is that in the year 1978, Manikchand was an
auction purchaser of land of Ramdayal. A decree was passed in the year 1997
in favour of Manikchand declaring his sale deed to be valid in relation to 5.93
acres of land out of 15 acres of land possessed by Ramdayal. Thereafter, in
1999, legal heirs of Ramdayal filed an appeal which was dismissed in the year
2004. Thereafter, a suit was filed by Manikchand seeking cancellation of sale
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SAN
deeds. That suit was decreed to the extent of 5.93 acres of land and for the
Digitally signed by VAIBHAV YEOLEKAR
remaining land, the suit was dismissed.
Date: 2022.12.08 19:16:37 IST
It is submitted that since petitioner/objector is a bonafide purchaser from
the legal heirs/successors of Ramdayal, therefore, merely on the strength of the
will, an application under Order 21 Rule 35 and Rule 36 C.P.C. should not have
been allowed.
Shri Pankaj Waghmode, learned counsel supports the impugned order
and submits that there is no illegality in the impugned order calling for
interference.
After hearing learned counsel for the parties and going through the
record, it is evident that Order 21 Rules 10 to 25 and 105 to 106 deal with
execution applications.
Order 21 Rule 10 C.P.C. provides that following persons may file an
application for execution :-
(I). Decree holder.
(II). Legal representative of the decree holder if the decree
holder is dead.
(III). Representative of decree holder.
(IV). Any person claiming under the decree holder.
(V) Transferee of the decree holder if the following conditions
are satisfied :-
(a). When certain conditions are fulfilled.
(VI). One or more of the joint decree holders.
(VII) Any person having special interest.
Order 21 Rule 35 and 36 provides the mode of executing decrees for
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possession of immovable property to the decree holder. Rules 35 and 36
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.12.08 19:16:37 IST
corresponds to Rules 95 and 96 which lay down the procedure for delivery of
possession to the auction purchaser who has purchased the property in an
auction sale. Where the decree is for the immovable property in the possession
of judgment debtor or in the possession of the person bound by the decree, it
can be executed by removing the judgment debtor or any person bound by the
decree and by delivering the possession thereafter to the decree holder.
If the decree holder satisfactorily establishes the identity of the decreetal
property, the decree must be executed by the court by putting the decree holder
in possession thereof. Please refer to judgment of the Supreme Court in
Shafiqur Rehman Khan and another Vs. Smt. Mohammad Jahan Begum
and others (1982) 2 SCC 456. The possession delivered in this manner is
known as 'Khas' or 'actual possession'.
The ambit and scope of Rules 35 and 36 have been explained by the
Allahabad High Court in Shamsuddin Vs. Abbas Ali AIR 1971 Allahabad
Thus, when the provisions contained in Order 21 Rule 10 are examined
with the provisions contained in Order 21 Rules 35 and 36, then it is evident that
even the legal representatives of the decree holder if the decree holder is dead or
representative of the decree holder is also entitled to execute the decree in terms
of the provisions contained in Section 146 C.P.C.
In the case of Smt. Saila Bala Dassi Vs. Smt. Nirmala Sundari Dassi
and another AIR 1958 SC 394, it is held that expression "claiming under" in
Section 146 is wide enough to include the cases of devolution and assignment
of interest mentioned under Order 22 Rule 10 C.P.C.
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Thus, when the impugned order is tested in terms of the provisions
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.12.08 19:16:37 IST
contained in Order 21 Rule 10 C.P.C., then there is no illegality in the impugned
order calling for interference in the supervisory jurisdiction of this court.
Accordingly, the petition fails and is dismissed.
(VIVEK AGARWAL)
JUDGE
vy
Signature Not Verified
SAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.12.08 19:16:37 IST
