Smt. Sarla vs Sandesh
2023 Latest Caselaw 12640 MP

                                                        1
                             IN    THE     HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                    HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                              ON THE 7 th OF AUGUST, 2023
                                             CIVIL REVISION No. 533 of 2022

                            BETWEEN:-
                            1.    SMT. SARLA W/O SHRI SUDHAKAR GAYAKWARD,
                                  AGED     ABOUT    55   YEARS, OCCUPATION:
                                  HOUSEWIFE R/O SURGA MATA WARD NO.34
                                  CHANDAN GAON CHHINDWADA, TEHSIL AND
                                  DISTRICT   CHHINDWADA     M.P.   (MADHYA
                                  PRADESH)

                            2.    PRAVEEN S/O LATE SUDHAKAR GAYAKWARD,
                                  AGED     ABOUT   38  YEARS, OCCUPATION:
                                  BUSINESSMAN R/O SURGA MATA WARD NO.34
                                  CHANDAN GAON CHHINDWADA, TEHSIL AND
                                  DISTRICT   CHHINDWADA   M.P.   (MADHYA
                                  PRADESH)

                            3.    PRATEEK @ LOKU S/O LATE SUDHAKAR
                                  GAYAKWARD,   AGED    ABOUT   35 YEARS,
                                  OCCUPATION: BUSINESSMAN R/O SURGA MATA
                                  WARD NO.34 CHANDAN GAON CHHINDWADA,
                                  TEHSIL AND DISTRICT CHHINDWADA M.P.
                                  (MADHYA PRADESH)

                                                                              .....APPLICANTS
                            (BY SHRI PRADEEP NAVERIYA, ADVOCATE)

                            AND
                            1.    SANDESH S/O LATE KUNDANLAL CHOURASIYA,
                                  AGED ABOUT 50 YEARS, R/O NEAR LABOUR
                                  COURT GULABRA CHHINDWADA, TEHSIL AND
                                  DISTRICT   CHHINDWADA   M.P.  (MADHYA
                                  PRADESH)

                            2.    VINOD S/O LATE KUNDANLAL CHOURASIYA,
                                  AGED ABOUT 48 YEARS, R/O NEAR LABOUR
                                  COURT GULABRA CHHINDWADA, TEHSIL AND
                                  DISTRICT  CHHINDWADA    M.P. (MADHYA
                                  PRADESH)


Signature Not Verified
                            3.    RAJESH S/O LATE KUNDANLAL CHOURASIYA,
Signed by: KUMARI PALLAVI
SINHA
Signing time: 8/8/2023
3:28:49 PM
                                                      2
                                  AGED ABOUT 50 YEARS, R/O NEAR LABOUR
                                  COURT GULABRA CHHINDWADA, TEHSIL AND
                                  DISTRICT  CHHINDWADA    M.P. (MADHYA
                                  PRADESH)

                                                                                        .....RESPONDENTS
                            (BY SHRI JAIDEEP SIRPURKAR, ADVOCATE FOR RESPONDENTS)

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

This civil revision has been preferred by the applicants/judgment debtors challenging the order dtd. 03.08.2022 passed by 2nd Civil Judge Senior Division, Chhindwara in case No. 700019/2016 whereby applicants' objection

dtd. 14.01.2022 has been rejected.

2. Learned counsel for the applicants/judgment debtors submits that as per judgment and decree dtd. 28.08.2016 passed in Civil Suit No.14-A/15, the decree holder/plaintiff was required to deposit an amount of Rs. 7,00,000/- for execution of the sale deed, which was deposited by the decree holder before the executing Court but out of the aforesaid amount, an amount of Rs. 6,09,913/- was released by the Court in execution of some other decree and remaining amount of Rs. 90,087/- was withdrawn by decree holder-Kundan Lal himself, therefore, now after withdrawal of the sale consideration amount by the decree holder himself, the decree is not executable.

3. Learned counsel submits that the aforesaid aspect has not been considered by the learned executing Court but the Court in its order wrongly observed that because the amount of Rs. 90,087/- was going to be lapsed, therefore, it was withdrawn by decree holder under order dtd. 13.03.2020 and due to non filing of any revision, the same has attained finality. Accordingly, learned counsel submits that the executing Court has erred in passing the impugned order even Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 8/8/2023 3:28:49 PM

without taking into consideration the objection submitted by the applicants.

4. Learned counsel appearing for the non applicants/decree holders submits that infact the amount of Rs. 90,087/- was withdrawn under the order of the Court because the applicants/judgment debtors were required to pay the cost of the suit also and he submits that in that regard an application was also moved before the Court below on 10.04.2017 under Order 21 Rule 52 CPC (I.A. No.1/2017). However, he concedes that this application does not appear to have been disposed off by learned executing Court. With these submissions, learned counsel prays for dismissal of civil revision.

5. Heard learned counsel for the parties and perused the record.

6. In the light of documentary evidence available on record, the arguments advanced by learned counsel for the parties do not appear to have been considered by learned executing Court in its impugned order dtd.03.08.2022. In what circumstances and under which order an amount of Rs. 90,087/- was withdrawn by the non applicants/decree holders, has also not been mentioned by learned executing Court in its order, which is necessary to be considered for effective compliance of the judgment & decree dtd. 28.06.2016. The counsel appearing for both the parties also concede that in this respect the order is not speaking one.

7. As such, the impugned order being non speaking in respect of withdrawal

of amount of Rs.90,087/- by the decree holder, is not sustainable and deserves to be set aside.

8. Resultantly, the civil revision succeeds and is allowed with the further direction to learned executing Court to decide the objection dtd.14.01.2022 afresh without being influenced by the impugned order dtd. 03.08.2022.

9. With the aforesaid observation, this civil revision is allowed and disposed Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 8/8/2023 3:28:49 PM

off.

10. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE Pallavi

Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 8/8/2023 3:28:49 PM