Sukharam (Dead) Thr. Lrs 1) Smt. ... vs Shakuntla
2023 Latest Caselaw 3596 MP

                                                        1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                                AT GWALIOR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                              ON THE 1 st OF MARCH, 2023
                                     MISCELLANEOUS PETITION No. 2931 of 2022

                           BETWEEN:-
                                 SUKHARAM (DEAD) THROUGH LRS
                           1.    SMT. GOMTIBAI W/O LATE SHRI SUKHARAM
                                 JAIN,  AGED     75   YEARS, OCCUPATION :
                                 HOMEMAKER, R/O KILE KE ANDAR POHRI
                                 DISTRICT SHIVPURI (MADHYA PRADESH)

                           2.    ASHOK KUMAR JAIN S/O LATE SHRI SUKHARAM
                                 JAIN, AGED 58 YEARS, OCCUPATION : TEACHER,
                                 R/O KILE KE ANDAR POHRI DISTRICT SHIVPURI
                                 (MADHYA PRADESH)

                           3.    MAHENDRA KUMAR JAIN S/O LATE SHRI
                                 SUKHARAM JAIN, AGED 56 YEARS, OCCUPATION :
                                 SHOPKEEPER , R/O KILE KE ANDAR POHRI
                                 DISTRICT SHIVPURI (MADHYA PRADESH)

                           4.    ARUN KUMAR S/O LATE SHRI SUKHARAM JAIN,
                                 AGED 38 YEARS, OCCUPATION : SHOP KEEPER
                                 R/O KILE KE ANDAR POHRI DISTRICT SHIVPURI
                                 (MADHYA PRADESH)

                           5.    SMT REENA D/O LATE SHRI SUKHARAM JAIN
                                 W/O SHRI VIVEK KUMAR, AGED ABOUT 45 YEARS,
                                 OCCUPATION HOMEMAKER, R/O RAJPURA
                                 ROAD, SHIVPURI (MADHYA PRADESH)

                           6.    MANORAMA W/O LATE SHRI RAJENDRA KUMAR,
                                 AGED   ABOUT    50   YEARS, OCCUPATION :
                                 HOMEMAKER, R/O KILE KE ANDAR POHRI
                                 DISTRICT SHIVPURI (MADHYA PRADESH)

                           7.    RUPESH KUMAR JAI S/O LATE SHRI RAJENDRA
                                 KUMAR, AGED ABOUT 24 YEARS R/O KILE KE
                                 ANDAR POHRI DISTRICT SHIVPURI (MADHYA
                                 PRADESH),

                           8.    KU. MOHANI D/O LATE SHRI RAJENDRA KUMAR,
                                 AGED ABOUT 19 YEARS, R/O KILE KE ANDAR
                                 POHRI DISTRICT SHIVPURI (MADHYA PRADESH)
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 02-03-2023
06:42:37 PM
                                                              2

                           9.    KU. SOHANI D/O LATE SHRI RAJENDRA KUMAR,
                                 AGED ABOUT 21 YEARS , R/O KILE KE ANDAR
                                 POHRI DISTRICT SHIVPURI (MADHYA PRADESH) ,

                                                                                         .....PETITIONERS
                           (NONE FOR THE PETITIONERS)

                           AND
                           1.    SHAKUNTLA S/O SHRI MANGILAL JAIN

                           2.    VIRENDRA KUMAR S/O SHRI MANGILAL JAIN

                           3.    PAWAN KUMAR S/O SHRI MANGILAL JAIN
                                 ALL R/O POHARI DISTRICT SHIVPURI (MADHYA
                                 PRADESH)

                           4.    USHA W/O SHRI OMPRAKASH JAIN D/O SHRI
                                 MANGILAL JAIN, R/O AGRA (UTTAR PRADESH)

                           5.    REKHA W/O SHRI CHANDRA PRAKASH JAIN D/O
                                 SHIR MANGI LAL JAIN, R/O SHIVPURI (MADHYA
                                 PRADESH)

                           6.    SNEHLATA W/O SHRI VINOD KUMAR JAIN D/O
                                 SHIR MANGI LAL JAIN R/O RANNOD, SHIVPURI
                                 (MADHYA PRADESH)

                           7.    MAYA W/O SHRI PRAKASH JAIN D/O SHIR MANGI
                                 LAL JAIN, R/O AGRA (UTTAR PRADESH)

                                                                                        .....RESPONDENTS


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

This petition under Article 227 of the Constitution of India has been filed against the order dated 05.04.2022 passed by Civil Judge, Senior Division, Pohari, District Shivpuri in Execution Case No.15-A/88x2005 by which the Executing Court has refused to proceed further with the execution proceedings on the ground that there is a stay by the High Court in Second Appeal No.885 Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 02-03-2023 06:42:37 PM

of 2005.

The facts for disposal of the present appeal in short are that the decree was passed in favour of the petitioners thereby declaring that the petitioners are the owner of half portion of the disputed property including a well as well as the house. It was also directed that the petitioners shall be free to seek possession after the partition. It was also directed that the petitioners are also entitled to seek half of the mesne profits derived from the house in question from 1997.

Being aggrieved by the judgment and decree passed by the trial Court, the respondents preferred an appeal which was registered at Serial No.53/2005 and the said appeal was also dismissed.

Being aggrieved by the judgment and decree passed by the Courts below, the respondents have filed S.A.No.885 of 2005 which was admitted on 26.10.2005 and a following interim order was passed "in the meanwhile, execution of the possession part of the impugned decree shall remain stayed."

The petitioner wanted to execute the decree in respect of mesne profit. However, the Executing Court has refused to execute the same on the ground that mesne profit is also a part of delivery of possession and since delivery of possession has been stayed, therefore, the decree cannot be executed.

Challenging the order passed by the Executing Court, it is submitted by the counsel for the petitioner that this Court has not stayed the effect and

operation of the decree, but has merely stayed the delivery part of the possession. So long as the respondents are in possession of the property in dispute, the petitioners are liable for half of the mesne profit derived from the property in dispute and, therefore, the trial Court committed that a material illegality by refusing to execute the sale deed.

Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 02-03-2023 06:42:37 PM

Per contra, the counsel for the respondents has supported the findings recorded by the Executing Court but fairly conceded that only the possession was stayed and not the monetary part.

Heard the learned counsel for the parties.

From the decree which was passed by the trial Court, it is clear that not only the petitioners were declared to be the owner of half part of the land in dispute including a well and a house, but it was also declared that the petitioners are entitled for half of the mesne profit derived from the house in the year 1997. Thus second part of the decree is necessarily a monetary decree. This Court by order dated 26.10.2005 has specifically stayed only possession part of the impugned decree and not the entire decree, thus, the monetary form of the decree has not been stayed. Further in exercise of power under Order 41 Rule 5(3) CPC, the Appellate Court can impose additional conditions.

Under these circumstances, the Executing Court should have proceeded further for the execution of the monetary part of the decree.

Accordingly, the order dated 05.04.2022 passed by the Civil Judge, Senior Division, Pohari, District Shivpuri in Execution Case No.15-A/88x2005 is hereby set aside. The Executing Court is granted permission to proceed further with the execution of the monetary part of the decree.

Accordingly, the petition succeeds and is hereby allowed.

(G.S. AHLUWALIA) JUDGE Avi

Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 02-03-2023 06:42:37 PM