Trimurti Charitable Public Trust ... vs Muni Kumar Rajdaan
2022 Latest Caselaw 140 MP

                                     1              MP. 2844/2021
                                                    MP. 1822/2021



                The High Court of Madhya Pradesh
                 WRIT PETITION No. 2844/2021
(Trimurti Charitable Public Trust & Anr. vs. Muni Kumar Rajdaan
                              and Anr.)
                 WRIT PETITION No. 1822/2021
  (Muni Kumar Rajdaan vs. Trimurti Charitable Public Trust &
                                 Ors.)
Gwalior dated 04.01.2022
      Shri Anand Bharadwaj, learned counsel for the petitioners in
Misc. Petition No.2844 of 2021 and for respondents No.1 and 2 in

Misc. Petition No. 1822 of 2021.

Shri B.K.Agarwal and Shri Abhishek Bhadoriya, learned counsel for the respondent No.1 in Misc. Petition No.2844 of 2021 and for petitioner in Misc. Petition No. 1822 of 2021.

The order passed today shall govern the disposal of Misc. Petition No. 2844/2021 (Trimurti Charitable Public Trust and Anr. Vs. Muni Kumar Rajdan and Anr.) and Misc. Petition No.1822/2021 (Muni Kumar Rajdan vs. Trimurti Charitable Public Trust and Ors.). The former misc. petition under Article 227 of the Constitution of India is at the instance of judgment-debtors taking exception to the order of Executing Court passed on 26.08.2021. By the said order the petitioners' application under Section 47 CPC has been rejected.

The facts of the case in nutshell are that the plaintiff's suit for declaration and injunction has been decreed vide judgment and decree dated 12.03.2018 and following decree has been passed :-

^^;g btjk v"Ve vfrfjDr ftyk U;k;k/kh'k Xokfy;j ds izdj.k dzekad vkj-lh-,l- 14,@2014 esa ikfjr fu.kZ; ,oa fMdzh fnukad [email protected]@2018 ls mnHkwr gqvk gSA mDr fu.kZ; ,oa fMdzh ds fo:) vukosnd en~;wu } kjk ekuuh; e0iz0 mPp U;k;ky; [kaMihB Xokfy;j ds 2 MP. 2844/2021 MP. 1822/2021

le{k ,Q-,- dzekad [email protected] f=ewfr ifCyd psfjVz~cy o vU; cuke equhdqekj jktnku esa ikfjr vkns'k fnukad [email protected]@2020 ls dsoy fMdzhnkj dks dCtk izkIr gksus ij laifRr ds vU;= varj.k ij jksd yxkbZ xbZ gS bl fMdzh ds fu"iknu ij dksbZ jksd ugha yxkbZ xbZ gS ftlds fo:) en~;wu }kjk ekuuh;

mPpre U;k;ky; ds le{k ,l-,y-ih- dzekad [email protected] izLrqr dh xbZ mlesa Hkh ekuuh; mPpre U;k;ky; }kjk ikfjr vkns'k fnukad [email protected]@2020 ls ekuuh; e0iz0 mPp U;k;ky; }kjk ikfjr vkns'k esa dksbZ gLr{ksi ugha fd;k x;k gSA ;g U;k;ky; fu.kZ; vkSj fMdzh ds ihNs T;knk dksbZ dk;Zokgh ugha dj ldrk vkSj ikfjr fu.kZ; ,oa fMdzh esa fookfnr Hkwfe dh igpku] prqlhZek,a br;kfn lHkh fcUnq Li"V fd;s gSa rc ,slh fLFkfr esa en~;wu f=efrZ pSfjVscy Vz~LV }kjk /kkjk 47 lgifBr /kkjk 151 lh-ih-lh- ds vkosnu esa mBkbZ xbZ vkifRr;ka dsoy bl btjk izdj.k dks foyafcr djus ds fy;s fujk/kkj dh xbZ gSaA vr% en~;ux.k dk vkosnu i= fujLr fd;k tkrk gSA izdj.k esa fookfnr laifRr ij en~;wu ds fo:) dCtk ,oa varorhZ; ykHk dh olwyh gsrq dCtklg olwyh okjaV ryokuk is'k gksus ij tkjh fd;k tkosA izdj.k [email protected] okjaV fjiksVZ gsrq fnukad [email protected]@2021^^

An application for execution of decree has been filed in April 2018 (civil suit was filed on 6.5.2000). During the course of execution proceeding an application under Section 47 CPC has been filed alleging want of details of description of the property mentioned in the decree and, therefore, the decree is inexecutable. The trial Court has found that the decree has attained finality and the trial Court cannot travel beyond the decree.

Shri Anand Bharadwaj, learned counsel for the petitioners, submits that mere evasive observation of the aforesaid nature in fact tantamounts to refusal to exercise jurisdiction by the trial Court. If the trial Court was of the view that decree explains and defines the property, the same ought to have been discussed in the impugned order, that has not been done. That apart, the application was heard as 3 MP. 2844/2021 MP. 1822/2021

far back as on 4.3.2020 whereas impugned order has been passed on 26.08.2021. Hence, the impugned order suffers from patent illegality warranting interference under Article 227 of the Constitution of India.

Per Contra, Shri B.K.Agarwal and Shri Abhishek Bhadoriya, learned counsel for the respondent/plaintiff oppose the petition and submit that a bare perusal of decree itself suggests that the dimensions of the property are well explained. As such, there is no scope for further specification of the boundaries. In fact, the instant application under Section 47 CPC has been filed to defeat and delay execution proceedings. Despite rejection of interim relief by this Court vide order dated 7.8.2018 passed in First Appeal No. 1074/2018 and by Hon'ble Supreme Court vide order dated 17.01.2020 passed in SLP No. 23300/2018, the plaintiff is not able to reap fruits of the decree and for one or the other reason the petitioners/defendants are hell-bent upon to delay the execution proceedings. It is also submitted that in the past on two occasions application under Section 24 CPC has been filed for transferring the execution proceedings but all fell in vein. Hence, no further interference is warranted under Article 227 of the Constitution of India. On the contrary, a direction is sought through Misc. Petition No. 1822/2021 to the Executing Court for early conclusion of the execution proceedings.

Upon hearing learned counsel for the parties and perusal of the decree under execution, this Court is of the view that the decree sufficiently identifies the property with directions and dimensions, hence no further clarification is warranted in that behalf. However, if for any reason the trial Court is of the view that verification of the boundaries may be warranted, it may pass appropriate orders for its own satisfaction.

Consequently, this Court is in agreement with Shri B.K.Agarwal and Shri Abhishek Bhadoriya, learned counsel for the 4 MP. 2844/2021 MP. 1822/2021

respondent/plaintiff that there is no illegality or jurisdictional error warranting interference under Article 227 of the Constitution of India in the impugned order dated 26.08.2021 passed by the Executing Court. Hence, Misc. Petition No. 2844/2021 sans merit and is hereby dismissed.

Misc. Petition No. 1822/2021 is hereby allowed with direction to the Executing Court to conclude the execution proceeding expeditiously but not later than six months.

Certified copy as per rules.

                                                           (Rohit Arya)
(yog)                                                         Judge




                                    YOGESH VERMA
                                    2022.01.05
                 VALSALA
                 VASUDEVAN
                 2018.10.26
                 15:14:29 -07'00'   11:55:04 +05'30'