Jamuna Prasad vs Vanshgopal
2023 Latest Caselaw 853 MP

                                  1
 IN    THE       HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                           BEFORE
             HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                    ON THE 13 th OF JANUARY, 2023
                   MISC. PETITION No. 2337 of 2021

BETWEEN:-
1.    JAMUNA PRASAD S/O LATE DADU SAHU, AGED
      ABOUT 58 YEARS, OCCUPATION: AGRICULTURIST
      R/O VILLAGE JAMUA, P.S. WAIDHAN, TEHSIL AND
      DISTT. SINGRAULI (M.P.)

2.    SARJU SAHU S/O LATE DADU SAHU, AGED ABOUT
      56 YEARS, OCCUPATION: AGRICULTURIST R/O
      VILLAGE JAMUA P.S WAIDHAN (MADHYA
      PRADESH)

                                                             .....PETITIONERS
(BY SHRI R.S. RATHORE - ADVOCATE)

AND
1.    VANSHGOPAL S/O LATE DEVLAL SAHU R/O
      VILLAGE JAMUA, P.S. WAIDHAN, TEHSIL AND
      DISTT. SINGRAULI (M.P.)

2.    SEETARAM S/O LATE DEVLAL SAHU VILLAGE
      JAMUA P.S WAIDHAN (MADHYA PRADESH)

3.    MST. DASHMATIYA W/O LATE DEVLAL SAHU
      VILLAGE JAMUA P.S WAIDHAN (MADHYA
      PRADESH)

                                                            .....RESPONDENTS
(RESPONDENT NOS.1 AND 2 BY SHRI A.P. SHAH - ADVOCATE)

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

By this petition filed under Article 227 of the Constitution of India, the petitioners are challenging the order dated 13.07.2021 (Annexure-P/5) passed

by the Executing Court whereby the Court below rejected their application filed under Order 9 Rule 7 of the Code of Civil Procedure.

Learned counsel for the petitioners submits that in an execution case, a decree granted in favour of respondents was put for execution in which the judgment debtor (petitioners herein) neither appeared nor filed any reply and as such, the Court below closed their right to file reply. Thereafter, the judgment debtor moved an application under Order 9 Rule 7 of the CPC for setting aside the order passed ex parte whereby their right to file reply was closed, but the Court below by the impugned order rejected the application, hence this petition.

Considering the fact situation of the case and taking note of the impugned

order passed by the Court below, I am of the opinion that surprisingly, the Court below entertained the application filed by the petitioners under Order 9 Rule 7 of the CPC whereas the said provision is not applicable in execution proceedings. However, if judgment debtor does not appear before the Executing Court, then the Court has every right to execute the decree, unless it is stayed by any higher forum. In my opinion, the order passed by the Executing Court closing the right of the judgment debtor to file reply, does not suffer from any irregularity or material illegality.

Thus, the petition fails and is hereby dismissed.

(SANJAY DWIVEDI) JUDGE Devashish

DEVASHISH MISHRA 2023.01.13 18:46:07 +05'30'