Smt.Sandhya Shrimali vs Mu.Pappu Bai
2023 Latest Caselaw 1634 MP

                                                         1
                          IN    THE      HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                   HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                            ON THE 30 th OF JANUARY, 2023
                                            MISC. PETITION No. 111 of 2022

                         BETWEEN:-
                         SMT.SANDHYA SHRIMALI W/O MADHUKAR SHRIMALI,
                         AGED   ABOUT    69  YEARS, OCCUPATION: SELF
                         EMPLOYED RAMESHWAR ROAD, KHANDWA (MADHYA
                         PRADESH)

                                                                                    .....PETITIONER
                         (BY SHRI AVINASH ZARGAR, ADVOCATE)

                         AND
                         1.    MU.PAPPU BAI W/O LATE KUNJILAL, AGED
                               ABOUT 72 YEARS, VILLAGE MATHELA SIHADA,
                               NEAR RAILWAY STATION, KHANDWA (MADHYA
                               PRADESH)

                         2.    MUKESH S/O LATE KUNJILAL, AGED ABOUT 47
                               YE A R S , VILLAGE MATHELA SIHADA, NEAR
                               RAILWAY STATION,      KHANDWA (MADHYA
                               PRADESH)

                         3.    JITENDRA S/O LATE KUNJILAL, AGED ABOUT 45
                               YE A R S , VILLAGE MATHELA SIHADA, NEAR
                               RAILWAY STATION,      KHANDWA (MADHYA
                               PRADESH)

                         4.    REKHA BAI D/O LATE KUNJILAL, AGED ABOUT 42
                               YE A R S , VILLAGE MATHELA SIHADA, NEAR
                               RAILWAY STATION,      KHANDWA (MADHYA
                               PRADESH)

                         5.    STATE OF M.P. THROUGH COLLECTOR DISTRICT
                               KHANDWA (MADHYA PRADESH)

                                                                                 .....RESPONDENTS
                         (BY SHRI AMAN PANDEY, PANEL LAWYER )

                               This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 2/2/2023
4:59:52 PM
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                         following:
                                                              ORDER

Learned counsel for petitioner contends that in terms of the judgment and decree delivered by the Appellate Court dated 27.07.2016 (Annexure P/2), the petitioner / decree holder moved an application under Section 151 CPC before the executing court and a request was made for execution of deed in terms of the judgment and decree dated 27.07.2016. The said application has been turned down by the executing court vide impugned order dated 30.11.2021 (Annexure P/1).

It is contended by the counsel that the executing court has observed that there is an alternative remedy to get the deed executed before the Registrar,

Khandwa, thus has not passed any order on the application and has kept the same.

The counsel contends that the impugned order passed by the executing court goes contrary to the provisions laid down in Order 21 Rule 34 of CPC. It is contended by the counsel that in such a case, the decree is required to be executed by the Court and as the respondent in the present case have remained ex-parte through out the Court ought to have exercised the powers which are conferred under Order 21 Rule 34 (4) of CPC.

Having considered the submissions advanced on behalf of the petitioner, it appears that as of now, the present petitioner/ decree holder has not filed an application in terms of Order 21 Rule 34(4) of CPC. A perusal of the said provision reflects that the decree holder is required to approach the executing court along with a draft of deed and in the present case draft deed has not been submitted along with the application filed under Section 151 of CPC before the executing court.

Signature Not Verified Signed by: SHUBHAM THAKKER Signing time: 2/2/2023 4:59:52 PM

Shri Avinash Zargar, Advocate submits that in terms of Order 21 Rule 34(4) of CPC an application along with a draft of deed shall be filed before the executing court and in such an eventuality the executing court be directed to pass appropriate order thereon.

In view of the aforesaid, the present petition stands disposed of with a direction that if the petitioner prefers an application under Order 21 Rule 34(4) of CPC before the executing court along with a copy of draft of deed, the said application shall be decided by the executing court in accordance with law without being influenced by earlier order dated 30.11.2021 (Annexure P/1).

With the aforesaid, the petition stands disposed of.

(MANINDER S. BHATTI) JUDGE Shub

Signature Not Verified Signed by: SHUBHAM THAKKER Signing time: 2/2/2023 4:59:52 PM