Madhya Pradesh High Court
Basant vs Ghansyam Das on 18 December, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 18 th OF DECEMBER, 2023
MISC. PETITION No. 4042 of 2021
BETWEEN:-
BASANT S/O SHRI BHAROSA CHAND, AGED ABOUT 56
Y E A R S , OCCUPATION: AGRICULTURIST VILL.
DARIYAPUR TEH. LIDHORA DIST. TIKAMGARH MP
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANIL LALA - ADVOCATE)
AND
1. GHANSYAM DAS S/O MAGAN NAI VILL.
DARIYAPUR TEH. LIDHORA DIST. TIKAMGARH
MP (MADHYA PRADESH)
2. BRAJBHUSHAN S/O PULLE NAI VILLAGE
DARIYAPUR TEHSIL LIDHORA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI A.K. PATHAK - ADVOCATE)
This petition coming on for admission this day, the Court passed the
following:
ORDER
This is a petition against the order dated 21.9.2021 (Annexure P-3)
passed by Civil Judge Class II, Jatara, District Tikamgarh in Case No.
EXA/03/18.
2. The counsel for the petitioner/defendant/judgment debtor contends
that a decree delivered by the Civil Court in Case No. 44-A/78 on 7.2.1984 is
being executed by the trial Court. It is contended that a copy of the said
judgment and decree has been brought on record as Annexure P-1 and a
perusal of the same reflects that the decree is to the effect that the defendants
would not interfere with the possession of the plaintiffs/respondents/decree-
holders. It is further contended that the suit was contested by the plaintiffs on
the ground that they were in possession of the property in question and
accordingly, the decree was passed by which the defendants therein were
restrained from interfering with the possession of the plaintiffs over the suit
property. However, the decree-holder while taking recourse to a complete volte
face, approached the executing Court with a prayer for direction to the
defendants to handover the possession of the property in question in terms of
the decree delivered in Case No. 44-A/78. It is contended that the decree was
not for handing over the possession of the property in question to the decree
holder, on the contrary, the defendants were restrained from interfering with the
possession of the plaintiff/decree holder. Therefore, it is apparent that the
plaintiffs through out misled the Courts and, therefore, persuaded the
concerned Court to pass the decree, contained in Annexure P-1. As the
execution of the decree is not in tune with the ultimate findings arrived at by the
trial Court in the decree, same is unexecutable. Accordingly, the order by which
the possession warrant has been issued against the petitioner/judgment debtor
is liable to be set aside.
3. Per contra, the counsel for the respondents submits that originally the
decree (Annexure P-1) was passed by the trial Court. The judgment and decree
passed by the trial Court was set aside in first appeal. Later on, a second appeal
was preferred by plaintiffs, which was allowed. Assailing the order passed in
second appeal, an SLP before the Apex Court was preferred by the
petitioner/judgment debtor, which has also been dismissed and accordingly,
after dismissal of the SLP, the application seeking execution was filed as there
was violation of the decree at the behest of the judgment debtor and
accordingly, the trial Court taking cognizance of the application has issued
possession warrant by passing impugned order dated 21.9.2021, therefore, the
same does not requires any interference. It is further contended that when the
execution case was filed, the present petitioner/judgment debtor approached the
executing Court with an objection that the execution case was not maintainable
in view of the limitation. The executing Court rejected the said objection vide
order dated 12.7.2019. Assailing the order dated 12.7.2019, the present
petition/judgment debtor has filed a civil revision before this Court vide Civil
Revision No. 32 of 2021 and there is no disclosure as regards order dated
12.7.2019 passed by the executing Court and also as regards filing of the civil
revision No. 32 of 2021 before this Court. Therefore, as the petitioner is guilty
of suppression of fact, present petition is liable to be dismissed, inasmuch as
the petitioner was required to disclose in Para 2 that a revision has been filed
assailing the order dated 12.7.2023 passed by the executing Court.
4. No other point is argued or pressed by the counsel for the parties.
5. Heard the rival submissions and perused the record.
6. A perusal of the judgment and decree reflects that the trial Court has
restrained the defendants from interfering with possession of the plaintiffs over
the property in question. The plaintiffs/decree holder alleging violation of the
judgment and decree filed an application for execution, which is contained in
Annexure P-2. Para-7 of the application for execution, being relevant for the
subject matter in controversy, is reproduced as under:-
^^ 7- erkyok e; lwn fMdzh ds fMdzh vuql kj fMdzh ds
vuql kj Hkwf e [k-u- 129@23 cktmy vnk gks jdok 0-32 gs- [k-
ua- 179 jdok 0-09 gs- [k-ua- 171 jdok 0-60 gs- [k-u- 172
jdok 0-27 gs- [k-ua- 173 jdok 0-20 gs- [k-ua- 174 jdok 0-10
gs- [k-ua- 175 jdok 0-24 gs- [k-ua- 178 jdok 0-76 gs- [k-ua- 185
jdok 0-22 gs- [k-ua- 143@464 jdok 3-00 gs- fLFkr xzk e
nfj;kiqj k rg- fcpkSj k ftyk Vhdex< ¼e-iz- ½ ds oknh ds dCts
esa gLr{ksi u djus dh LFkkbZ fu"ks/ kkKk izf roknhx.k ds fo:)
tkjh dh gS ftldk mY?ku djus ds dkj.k ;g btjk; izL rqr
djuh i< jgh gSA **
7. A perusal of Para 7 of the application filed under Order 21 Rule 11,
CPC reflects that the plaintiffs/decree holder approached the trial Court with the
allegation of violation of the decree at the behest of the defendant and
accordingly taking cognizance of the said application, the trial Court has passed
the order dated 21.9.2021. Therefore, if the application for execution itself
contains factum of violation of the decree, the trial Court has not committed any
error in passing the impugned order in issuing possession warrant. Hence, this
Court is not inclined to entertain the petition. Moreover, the petitioner is also
guilty of suppression of fact, inasmuch as there is no disclosure of factum of
filing of civil revision No. 32 of 2021, which was filed challenging the order by
which objection of the petitioner as regards limitation was declined by the trial
Court.
8. In view of the aforesaid, the petition stands dismissed. No costs.
(MANINDER S. BHATTI)
JUDGE
PB
