Kesharsingh Chouhan (Decd.) ... vs R.S. Agarwal (Radhikasharan ...
2022 Latest Caselaw 3993 MP

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                                      IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                                                                  FA No. 93 of 2022
                                 (KESHARSINGH CHOUHAN (DECD.) THROUGH LEGAL REPRESENTATIVE SMT. NEERAJA AND OTHERS Vs
                                                        R.S. AGARWAL (RADHIKASHARAN AGARWAL))

                                Dated : 23-03-2022
                                          Mr Ajay Bagadia, learned counsel alongwith Mr Rishi Shrivastava, learned

                                counsel for the appellants.
                                      Mr Ghan Shyam Agrawal, learned counsel for the respondent.

Appeal is admitted for hearing.

Since the respondent is already represented no fresh notice is required to be issued to him.

Parties are heard on IA No. 429/2022 which is an application under order 41 Rule 5 of the CPC for stay of execution of the impugned decree.

Learned counsel for the appellant submits that the impugned decree directs for execution of the sale deed in favour of respondent consequent to which possession shall also have to be delivered to him, hence the execution of the decree deserves to be stayed.

Learned counsel for the respondent submits that by order dated 24-11-2011, during pendency of the civil suit, the appellant had been restrained from creating any third party interest in the suit property, but despite such order he has inducted

a tenant in the suit property hence is not entitled for any discretionary relief in this appeal. In any case, he should ensure that the property is got vacated from the tenant so that the term of the Agreement as regards handing over of vacant possession of the suit property is complied with in the event of dismissal of the appeal.

It is seen that by order dated 24-11-2011 the trial Court had restrained the appellant from creating any third party interest in the suit property or encumbering the same in any manner. In my opinion induction of a tenant in the property would not amount to creating any third party interest in the suit property or encumbering the same in any manner.

Consequently, IA No. 429/2022 is allowed and the execution of the Signature Not Verified SAN judgment and decree passed by the trial Court is stayed subject to the following Digitally signed by RASHMI PRASHANT conditions:-

Date: 2022.03.26 14:31:06 IST

1. The appellant shall not transfer, alienate or encumber the suit property by creating any third party rights either for consideration or otherwise and shall also not part with possession of the same in any manner.

2. The entire cost of the suit awarded by the trial Court shall be deposited by the appellant within a period of one month, if not deposited. On such deposit being made the respondent will be entitled to withdraw the amount.

3. Appellant shall furnish an undertaking before the trial court within a period of four weeks that in the event of the dismissal of this appeal, he shall handover vacant possession of the suit property to the respondent as per the Agreement to Sale in question.

In light of the aforesaid, IA Nos. 1077/2022, 1078/2022 and 806/2022 also stands disposed off.

Certified copy as per rules.

(PRANAY VERMA) JUDGE

rashmi

Signature Not Verified SAN

Digitally signed by RASHMI PRASHANT Date: 2022.03.26 14:31:06 IST