Salamat Bax vs Smt.Akhtari Bee
2023 Latest Caselaw 2838 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                       BEFORE
                                       HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                             ON THE 16 th OF FEBRUARY, 2023
                                             MISC. PETITION No. 2595 of 2022

                          BETWEEN:-
                          SALAMAT BAX S/O AHMED BAX, AGED ABOUT 62
                          YE A R S , ADDRESS H.NO.605 BHANTALIYA BAKRA
                          MARKET       KHERMAI   WARD   POLICE  STATION
                          HANUMANTAL M.P. (MADHYA PRADESH)

                                                                                         .....PETITIONER
                          (BY SHRI SUNIL VERMA - ADVOCATE )

                          AND
                          SMT.AKHTARI BEE W/O ABU SUFIYAN, AGED ABOUT 50
                          YEAR S, ADDRESS ANAND NAGAR KATRA DISTRICT
                          JABALPUR M.P. (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                          (BY SHRI ANURAG TIWARI - ADVOCATE )

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

This is a petition by judgment debtor assailing the order dated 19.08.2019 (Annexure P/1) passed by the Executing Court whereby an application moved by the judgment debtor under Order 26 Rule 9 of CPC has been rejected.

It is contended by the counsel for petitioner's/ judgment debtor that the decree dated 04.12.2008 is being executed by the Executing Court vide Execution Case No. A81/2019. As property in question during the pendency of the litigation collapsed on account of heavy rains, an application was moved by the judgment debtor under Order 26 Rule 9 of CPC for appointment of the Signature Not Verified Signed by: SHUBHAM THAKKER Signing time: 2/23/2023 3:45:20 PM

Commissioner to ascertain as to whether the property in question has been collapsed or not. The said application submitted by the petitioner, rejected vide order dated 19.08.2019 seeking review of the order dated 19.08.2019, the judgment debtor moved an application. The said application for review has been declined vide order dated 05.04.2022.

The counsel contends that the impugned orders are unsustainable inasmuch as, in order to ascertain the fact that as to whether the property in question still standing or not. It was incumbent upon the executing court to get the property inspected through Commissioner in terms of Order 26 Rule 9 of CPC. It is contended by the counsel that against the judgment and decree, the

appeal was preferred before the lower Appellate Court and an application under Order 6 Rule 17 was also filed and prayer was made for appointment but the said application was declined by a composite order by which not only the application for amendment but also the appeal itself was dismissed and resultantly, the said facts could not be ascertained and later on, this fact was sought to be brought to the notice of the executing court along with an application under Order 26 Rule 9 CPC, unfortunately, the same has been declined vide impugned order.

Learned counsel for petitioner submits that the appointment of the Commissioner to ascertain the fact that as to whether the house in question has been collapsed or not, is imperative and necessary under the facts and circumstances of the case therefore, the impugned order deserves quashment.

Per contra, learned counsel for respondent submits that earlier as well an application was moved by the present petitioner before the appellate Court under Order 6 Rule 17. The said application was rejected which is evident from the perusal of order-sheet dated 30.06.2011 (Annexure P/5). The judgment Signature Not Verified Signed by: SHUBHAM THAKKER Signing time: 2/23/2023 3:45:20 PM

debtor did not challenge the said order and even after dismissal of the first appeal, no second appeal has been preferred by the judgment debtor and therefore, the judgment and decree dated 04.12.2008 has attained finality and has become conclusive and thus, since the executing court cannot go behind the decree and accordingly the application preferred by the judgment debtor under Order 26 Rule 9 of CPC has rightly been declined. Thus, submits that no interference is warranted.

Heard the rival submission and perused the record. In the present case, there is a decree in favour of the decree holder dated 04.12.2008 which has attained finality as appeal against the said judgment and decree has been dismissed vide judgment dated 30.06.2011 challenged in Civil

Appeal No.2-A/2009 by 11th Additional District Judge, Jabalpur.

A perusal of the decree delivered by the trial Court reflects that the defendant by the decree were restrained from dispossessing the plaintiff from the disputed property i.e. House No.606 Khermai Ward, Bakra Market, Jabalpur. As per the said decree, the trial Court came to a conclusion that the plaintiff is in possession of the disputed property. The said findings of the trial Court have now attained finality and thus, in absence of any challenge to those findings, the defendant under the garb of application under Order 26 Rule 9 of CPC could not have disputed the findings arrived at by the trial Court. In the

application under Order 26 Rule 9 of CPC, it was contended by the judgment debtor cum defendant that during the pendency of appeal, the property i.e. house in question collapsed during rainy reason and therefore, after the collapse of house, the plaintiff never came to the property in question and therefore, it was contended that as to whether their exist any house or not, it was a question

Signature Not Verified Signed by: SHUBHAM THAKKER Signing time: 2/23/2023 3:45:20 PM

which was required to be adjudicated by Commissioner in terms of provisions of Order 26 Rule 9 of CPC. The trial Court has rejected the said application while observing that the executing court cannot go behind the decree. The executing court has further observed that the provisions of Order 26 Rule 9 of CPC cannot be invoked to collect evidence and accordingly, has rejected the said application. The review petition filed by the judgment debtor has also been rejected vide order dated 05.04.2022. The Court has considered the scope of review and observed that review is only confined to the grounds which are mentioned in Order 47 Rule 1 and the same cannot be stretched to the merits of the matter and has accordingly, rejected the same while holding that the judgment debtor has failed to point out any error which is apparent in the order dated 19.08.2019.

In the considered view of this Court, there is no infirmity or perversity in the order passed by the executing court and accordingly, the present petition stands dismissed.

(MANINDER S. BHATTI) JUDGE Shub

Signature Not Verified Signed by: SHUBHAM THAKKER Signing time: 2/23/2023 3:45:20 PM