Madhya Pradesh High Court
Mahesh Kumar vs Motilal S/O Chunnilal Shah Thr ... on 5 October, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 5 th OF OCTOBER, 2023
MISC. PETITION No. 5875 of 2023
BETWEEN:-
MAHESH KUMAR S/O SHANKARLAL RATHOD, AGED
ABOUT 54 YEARS, OCCUPATION: ADVOCATE R/O
MAHATMA GANDHI MARG BARWANI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SANJEEV KUMAR RAWAT - ADVOCATE)
AND
1. MOTILAL S/O CHUNNILAL SHAH THR LRS.
PRAVEEN S/O MOTILAL KALAL OCCUPATION:
NOT KNOWN DEWAS (MADHYA PRADESH)
2. MOTILAL S/O CHUNNILAL SHAH THR LRS.
MAHENDRA S/O MOTILAL KALAL OCCUPATION:
NOT KNOWN DEWAS, DIST. DEWAS (MADHYA
PRADESH)
3. MOTILAL S/O CHUNNILAL SHAH THR LRS.
SUSHILABAI D/O MOTILAL KALAL OCCUPATION:
NOT KNOWN NAVALPURA MOHALLA, DIST.
BARWANI (MADHYA PRADESH)
4. MOTILAL S/O CHUNNILAL SHAH THR LRS.
KAMLESH D/O MOTILAL KALAL OCCUPATION:
NOT KNOWN BISTAN ROAD, DIST. KHARGONE
(MADHYA PRADESH)
5. MOTILAL S/O CHUNNILAL SHAH THR LRS.
SUMAN D/O MOTILAL OCCUPATION: NOT
KNOWN SHUBHAM PALACE INDORE (MADHYA
PRADESH)
6. MOTILAL S/O CHUNNILAL SHAH THR LRS.
DURGESH D/O MOTILAL OCCUPATION: NOT
KNOWN 11, JAGJIVAN MARG, MANDLESHWAR,
TEH. MAHESHWAR, DIST. KHARGONE (MADHYA
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 05-10-2023
16:20:11
2
PRADESH)
7. JANKIBAI W/O SHANKARLAL RATHOD, AGED
ABOUT 78 YEARS, OCCUPATION: HOUSEWIFE
MAHATMA GANDHI MARG, BARWANI (MADHYA
PRADESH)
8. MUKESH S/O SHANKARLAL RATHOD, AGED
ABOUT 48 YEARS, OCCUPATION: BUSINESS
MAHATMA GANDHI MARG, BARWANI (MADHYA
PRADESH)
9. KIRAN D/O SHANKARLAL RATHOD, AGED ABOUT
58 YEARS, OCCUPATION: HOUSEWIFE SUDAMA
NAGAR, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI JITENDRA BHARAT MEHTA - ADVOCATE FOR THE
RESPONDENT NOS.1,2&3)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
With the consent of the parties, the matter is heard finally.
2. The present petition is filed under Article 227 of the Constitution of
India being aggrieved by the order dated 23/9/2023 passed by Ist Additional
District Judge, Barwani in Miscellaneous Civil Appeal No.21/2023 arising out of
the order dated 6/3/2023 passed by Ist Civil Judge, Class I, Barwani whereby
the application for bringing legal representatives of the deceased decree holder
has been allowed and the objection raised by the petitioner regarding bringing
legal representative of deceased decree holder has been rejected.
3. The facts of the case are that the original respondent No.1/deceased
had filed a suit for possession which was decreed by the judgment and decree
dated 13/2/2017 in Civil Suit No. RCSA No.2/2015. During the pendency of the
execution proceedings, the decree holder died. An application for bringing the
representative on behalf of the original decree holder was filed by the Advocate.
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 05-10-2023
16:20:11
The reply to the said application was filed by the petitioner and it was disputed
that the proposed legal representatives are not the legal representatives of the
deceased decree holder, Motilal. The learned Trial Court initially by order dated
29/11/2021 allowed the said application. Against the said order, an appeal was
preferred before the Principal District Judge, Barwani and the said appeal was
allowed by order dated 7/2/2022 and the matter was remanded back to the
Executing Court. After the remand, the Executing Court again allowed the
application and the petitioner being aggrieved by the said order again filed
appeal before the Upper District Judge, Barwani. By the impugned order, the
said appeal has been rejected.
4. Counsel for the petitioner submits that the petitioners have disputed
that the proposed legal representatives are not LR's of the deceased decree
holder. In this regard neither the succession certificate nor any document was
filed by the proposed legal representatives.
5. Counsel for the proposed legal representatives submitted that the
provisions of Order XXII Rule 3 of CPC shall not apply to the execution
proceedings and the appeal filed by the petitioner was not maintainable.
6. Upon perusal of the impugned orders, it is manifest that the Executing
Court and the Appellate Court have not decided the aforesaid issues in a proper
perspective and considering the objections of the parties, therefore, the
impugned orders dated 6/3/2023 passed by the Executing Court and the
Appellate Court order dated 23/9/2023 are quashed. The Executing Court is
directed to decide the application for bringing legal representatives on record of
the deceased decree holder, Motilal afresh by considering the objections raised
by the petitioner. In case, if the appeal is filed against the said order by
Signature Not Verified
petitioner, it would be open for the proposed legal representatives to raise the
Signed by: PRAMOD
KUSHWAHA
Signing time: 05-10-2023
16:20:11
objection regarding maintainability of the appeal.
7. With the aforesaid, the present petition stands allowed. The impugned
orders are set aside.
8. Till the application is decided afresh by the Executing Court, the
status-quo as exist today shall be maintained by both the parties in respect to
the property in question.
CC today.
(VIJAY KUMAR SHUKLA)
JUDGE
Pramod
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 05-10-2023
16:20:11
