Secretary Krishi Upaj Mandi ... vs Tarabai Thru. Lrs. Nahar Singh
2022 Latest Caselaw 7671 MP

                                     1

        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                               BEFORE


              HON'BLE SHRI JUSTICE PRANAY VERMA



                 WRIT PETITION No. 7972 of 2012

Between:-
SECRETARY KRISHI UPAJ MANDI SAMITI

KRISHI UPAJ MANDI NEEMUCH
                                                         .....PETITIONER

(BY SHRI KAMAL AIREN-ADVOCATE )


AND

TARABAI THRU. LRS. NAHAR SINGH
S/O LATE SHRI MANGILAL RATHORE NEEMUCH CITY
DISTT. NEEMUCH
                                                      .....RESPONDENTS

(BY SHRI VISHAL BAHETI-ADVOCATE)

Reserved on 06-04-2022

                                 ORDER

( Delivered on 13/06/2022)

01. This petition has been preferred by the petitioner/judgment debtor

against the order dated 19-05-2011 (Annexure-P-5) passed by the

executing Court rejecting an application filed by it and also against the

order dated 19-06-2012 Annexure-P-9 passed by it whereby the

petitioner has been directed to furnish an affidavit to the effect as to

whether it is creating obstruction in possession of respondent or not.

02. The petitioner Krishi Upaj Mandi allotted plot No. 68 to the

respondent/decree holder by virtue of a lease deed executed on

01-01-1968 for a period of thirty years. Subsequently, the lease deed was

renewed on 30-08-1979 with a renewal clause as per which the lease

could be renewed. A suit was filed by the respondent for declaration and

permanent injunction in which a compromise was entered into between

the parties on 07-07-1999 and a decree in terms of the said compromise

was passed on 17-11-1999. The terms of the compromise were that the

respondent had filed a map for sanction on 25-07-1982 which was to be

sanctioned by the petitioner and the respondent was at liberty to raise

construction on the plot as per terms of the lease deed. A decree for

permanent injunction was granted in favour of respondent restraining the

petitioner from interfering with her possession over the plot.

03. On 31-08-2009 the respondent filed an application under Order 21

Rule 32 and 34 of the CPC alleging breach of the decree submitting that

the petitioner is interfering with his possession over the plot and can

forcibly dispossess her therefrom at any time. Reply was filed by the

petitioner to the said application.

04. The petitioner also filed an application to the effect that it is only

the respondent who is entitled to make construction over the plot but the

same is being got done by her through her power of attorney holder

which is impermissible. The respondent filed reply to the said

application. By order dated 19-05-2011 the application filed by the

petitioner was rejected by the executing Court observing that mere

absence of respondent and her acting through her Power of Attorney

Holder would not make any difference. However it was also observed

that the lease deed of respondent is still in force and until and unless the

same is cancelled, it shall continue to be effective.

05. Thereafter by order dated 19-06-2012 the executing Court has

directed the petitioner to file an affidavit to the effect that it is not

interfering in possession of the respondent nor is creating any obstruction

in her access to the plot. It was observed that the application under

Order 21 Rule 32 of the CPC shall be considered only thereafter.

06. The order dated 19-05-2011 was in respect of decision of an

application filed by the petitioner contending that the respondent is not

herself taking any action with respect to the plot but is acting through her

Power of Attorney Holder which is impermissible. The said application

was rejected by the executing Court observing that merely because the

respondent is acting through her Power of Attorney Holder, it would not

make any difference. In the order it was also observed that the decree for

permanent injunction against the petitioner is still in force and the lease

deed of the respondent is effective at present also. The said observations

have been made by the executing Court on its own and nothing has been

brought on record to show that any objection was raised before it as

regards executability of the decree hence there was no occasion, necessity

or justification for the executing Court to have made such observations.

It was only deciding an application filed by the petitioner and should have

confined itself to the determination of that application itself. It has

rightly rejected the application but has made uncalled for observations.

07. The decree which is being enforced by the respondent is for

permanent injunction and is enforcible under Order 21 Rule 32 of the

CPC. Respondent has alleged contravention by the petitioner who has

filed its reply contesting the same. For deciding the question whether the

decree is being contravened or not, the only course available to the

executing Court is to make an inquiry as regards allegations of

contravention by the petitioner. The direction issued by it to the

petitioner in the order dated 19-06-2012 is a step towards such an inquiry

and cannot be faulted with. The fact whether the decree is being

contravened by the petitioner or not can only be ascertained by an inquiry

as has been held by this Court in Nagar Palika Shivpur Vs. Ramesh

Chandra Gupta, 1983 MPWN Note 302.

08. The executing Court has hence not committed any error in passing

the impugned order dated 19-05-2011 rejecting the application of the

petitioner and in passing the order dated 19-06-2012 issuing directions as

contained therein. The uncalled for observations in the order dated

19-05-2011 are to be ignored. The Impugned orders hence do not

warrant any interference. In case the petitioner has any grievance as

regards the executability of the decree, then it shall be open for it to file

an appropriate application before the executing Court in that regard. In

case such an application is filed by the petitioner then the same shall be

decided by the executing Court in accordance with law.

09. With the aforesaid observations, the petition stands disposed off.

(PRANAY VERMA) JUDGE

RASHMI

RASHMI PRASHANT 2022.06.14 17:01:14 +05'30'