Mahesh Rajput vs Raja Udasi
2023 Latest Caselaw 6883 MP

                                                             1
                            IN      THE          HIGH COURT OF MADHYA PRADESH
                                                       AT INDORE
                                                        BEFORE
                                          HON'BLE SHRI JUSTICE PRANAY VERMA
                                                   ON THE 27 th OF APRIL, 2023
                                                 MISC. PETITION No. 2427 of 2023

                           BETWEEN:-
                           MAHESH RAJPUT S/O HEMRAJ RAJPUT, AGED ABOUT
                           50 YEARS, OCCUPATION: BUSINESS R/O 20, GALI NO. 2,
                           B.K. SINDHI COLONY DISTT. INDORE (MADHYA
                           PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI AKHIL GODHA - ADVOCATE)

                           AND
                           RAJA UDASI S/O LALCHAND UDASI, AGED ABOUT 45
                           YEARS, OCCUPATION: SERVICE, R/O 20, GALI NO.2, B.K.
                           SINDHI COLONY, DISTT. INDORE (MADHYA PRADESH)

                                                                                        .....RESPONDENT
                           (NONE)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

1. Heard.

2. By this petition the petitioner has challenged the order dated 25.04.2023 (Annexure P/7) passed by the appellate Court whereby his application under Order 41 Rule 5 of the CPC for stay of execution of the judgment and decree dated 21.12.2021 passed by the trial Court has been rejected on the ground that the appeal has remained pending for more than a year and nothing has been brought on record to suggest that there is any threat for execution of the decree. It has further been observed that since the parties Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 27-04-2023 13:36:49

have already appeared the appeal itself can be finally decided.

3. From the record it is apparent that an eviction decree has been passed against the petitioner which has been put to execution by the respondent in which warrant of possession has already been issued. If the same is executed and possession of the disputed property is delivered to the respondent, then the appeal preferred by the petitioner would itself be rendered infructuous which is not the intention of law. Merely for the reason that the appeal has remained pending for more than a year, it could not have been presumed that there is no threat for dispossession particularly when warrant of possession has been issued against the petitioner.

4. Thus, in my considered opinion, interest of justice would be served if, the appellate Court is directed to decide the appeal pending before it itself within a period of three months and in the meanwhile the decree is not executed. It is hence directed that the execution of the judgment and decree passed by the trial Court shall remain stayed and the appellate Court shall finally decide the appeal itself on merits within a period of three months from the date of receipt of certified copy of this order in accordance with law.

5. With the aforesaid direction, modifying the order passed by the appellate Court, the petition stands disposed off.

C.c. today.

(PRANAY VERMA) JUDGE ns

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 27-04-2023 13:36:49