Devendra Gole vs M/S Mahak Coal Traders Through ...
2022 Latest Caselaw 15736 MP

                                1

      IN THE HIGH COURT OF MADHYA PRADESH
                          AT INDORE
                            BEFORE
        HON'BLE SHRI JUSTICE SUBODH ABHYANKAR

                ON THE 29th OF NOVEMBER, 2022

              WRIT PETITION No. 11435 of 2022

 BETWEEN:-
 DEVENDRA GOLE S/O MOHANLAL GOLE, AGED ABOUT 34
 YEARS, OCCUPATION: LABOUR RAIDAS MARG, DISTRICT-
 BARWANI (MADHYA PRADESH)
                                                .....PETITIONER
 (BY SHRI ANIKET NAIK, ADVOCATE)

 AND
 M/S MAHAK COAL TRADERS THROUGH PROPRIETOR SHRI
 AMAN AGRAWAL S/O SHRI ANOOP AGRAWAL, DEVISINGH
 MARG, OPP. MATH SCHOOL AND DISTRICT BARWANI
 (MADHYA PRADESH)
                                               .....RESPONDENT
 (BY SHRI ABHINAV DHANODKAR, ADVOCATE)
This petition coming on for hearing this day, the court passed the
following:
                           ORDER

This petition has been filed by the petitioner under Article 226/227 of the Constitution of India against the order dated 14.03.2022 (Annexure-P/5), in Case No.Ex-4-B/2018 passed by Second Civil Judge, Junior Division (Class-II), District-Barwani whereby the petitioner's right to file the reply to the application filed by the respondent/decree holder under Order 21 Rule 37 CPC has been closed, by referring to order dated 31.01.2022. It is held that since the application filed by the respondent/decree holder

under Order 21 Rule 37 CPC has already been decided on 31.01.2022 ,wherein the judgment debtor was also issued show cause notice as to why he should not be sent to civil jail, and it is held that no further time can be granted to the petitioner / judgment debtor to file reply to the aforesaid application and it is directed that on decree holders depositing the requisite expenses, the order be issued to send the judgment debtor to the jail.

Counsel for the petitioner has submitted that the learned Judge of the Executing Court has lost sight of the very provision of Order 21 Rule 37 of CPC, which envisages show cause to be issued to the judgment debtor which is not a mere formality. It is submitted that the provision of Order 21 Rule 40 of CPC have also not been complied with and no enquiry took place. Thus, it is submitted that the impugned order be set-aside and opportunity to file reply to the aforesaid application filed by the decree holder be afforded to the petitioner.

The aforesaid relief has been opposed by the respondent/decree holder and it is submitted that a decree of Rs.2,92,768/- has been passed on 06.11.2017, whereas the civil suit was filed on 12.03.2015. Thus, it has already been more than seven years from the date of filing of the civil suit and the decree holder is still deprived of the fruits of the decree, which has been passed in favour by the Civil Court on account of delay and tactics applied by the petitioner/judgment debtor.

Counsel has further submitted that the learned Judge of the Executing Court may be directed to decide the application filed by

the respondent / decree holder, expeditiously preferably within the period of one month. In support of his submission, he has also relied upon the decision rendered by the Apex Court in the case of Bhoj Raj Garg vs Goyal Education and Welfare Society and Others reported in 2022 Live Law (SC) 976, wherein the Apex Court has directed that the execution proceedings must be disposed of within six months time from the date of filing of the case and in the present case, the execution proceeding is pending since 2018.

On due consideration of submissions and on perusal of the documents available on record, including the aforesaid decision rendered by the Apex Court in the case of Bhoj Raj Garg (supra) this Court finds that so far as the order passed by the learned Judge of the Executing Court is concerned, it is apparent that the petitioner / judgment debtor has not been given any opportunity to file reply and to contest the matter as provided under Order 21 Rule 40 of CPC.

Under such circumstances, the impugned order dated 14.03.2022 (Annexure-P/5) cannot be sustained in the eyes of law and is hereby set-aside, further with a direction to the learned Judge of Executing Court to proceed further in the matter by deciding the application filed by the respondent/decree holder u/o.21 R.37 of CPC, and dispose of the execution proceedings, as expeditiously as possible, preferably within a period of three months from the date of receipt of certified copy of this order.

With the aforesaid direction, the present petition stands

disposed of.

Certified copy as per Rules.

(SUBODH ABHYANKAR) JUDGE Arun/-

Digitally signed by ARUN NAIR Date: 2022.12.01 11:35:21 +05'30'