Kanhaiyalal vs Premnarayan
2023 Latest Caselaw 16655 MP

                                           -1-


IN THE               HIGH COURT OF MADHYA PRADESH
                           AT I N D O R E
                                           BEFORE
                   HON'BLE SHRI JUSTICE VIVEK RUSIA
                          ON THE 9th OF OCTOBER, 2023
                         MISC. PETITION No. 1855 of 2022

BETWEEN:-
   KANHAIYALAL S/O SHRI HARIRAM JI, AGED ABOUT 50 YEARS,
1. OCCUPATION: AGRICULTURE, R/O KHATIK MOHALLA, GAROTH,
   DISTRICT MANDSAUR (MADHYA PRADESH)
   JAGDISH S/O SHRI HARIRAM JI, AGED ABOUT 50 YEARS,
2. OCCUPATION: AGRICULTURIST, R/O KHATIK MOHALLA, GAROTH,
   DISTRICT MANDSAUR (MADHYA PRADESH)
                                                                              .....PETITIONERS
(SHRI HIMANSHU JOSHI, LEARNED COUNSEL FOR THE PETITIONERS.)

AND
   PREMNARAYAN S/O SHRI RAMCHANDRAJI SANKHLA, AGED ABOUT
1. 70 YEARS, OCCUPATION: AGRICULTURE, R/O GRAOTH, DISTRICT
   MANDSAUR (MADHYA PRADESH)
   KACHANBAI W/O LATE HARIRAMJI, AGED ABOUT 70 YEARS,
2. OCCUPATION: AGRICULTURE, R/O KHATIK MOHALLA, GAROTH,
   DISTRICT MANDSAUR (MADHYA PRADESH)
   VIKRAM S/O SHRI JAGDISH, AGED ABOUT 30 YEARS, OCCUPATION:
3. AGRICULTURE, R/O KHATIK MOHALLA, GAROTH, DISTRICT
   MANDSAUR (MADHYA PRADESH)
                                                                            .....RESPONDENTS
(SHRI VIJAY PRABHAKAR SARAF, LEARNED COUNSEL FOR THE
RESPONDENT NO.1.)
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        This petition coming on for orders this day, the court passed the
following:

                                             ORDER

[01] The petitioners have filed this petition being aggrieved by order dated 26.03.2022 whereby application under Order IX Rule 7 of CPC has been dismissed. The respondents No.1 to 3 filed a suit for declaration and permanent injunction against father of petitioner Hariram and three others seeking removal of construction and leaving four feet road for plaintiffs. The suit was decreed by way of compromise on 29.07.1993.

[02] When the compromise decree was not honored by defendant, the respondents initiated an execution proceeding i.e. MJC/07/2017. During this period, Hariram expired hence, these petitioners being the legal representatives are called upon to execute the compromise decree. After receipt of notice they appeared through counsel and sought time to file reply.

[03] Vide order dated 03.05.2019, they were proceeded ex-parte as their counsel did not appear. Thereafter, the respondent filed an application under Order XXI Rule 32 of CPC which came to be allowed vide order dated 06.02.2020 by directing Nagar Panchayat, Garoth to remove the construction and report the matter to the Court with the help of police. After the aforesaid order, immediately, the petitioners appeared alongwith an application under Order IX Rule 7 r/w Section 151 of CPC and order XXI Rule 26 of CPC.

[04] The respondents filed a reply and vide impugned order dated 26.03.2022 Court has dismissed the application filed under Order IX Rule 7 of CPC hence, this present petition solely on the ground that

the counsel who was appearing for petitioners did not appear and did not inform the petitioners about the ex-parte proceedings.

[05] Shri Vijay Prabhakar Saraf, learned counsel for the respondents submits that even though the counsel did not appear on one day and the petitioners were proceeded ex-parte but for 3 years they did not care to enquire the status of the case. They ought to have made contact with the counsel to know the status of this case because there is a decree of removal of encroachment against them. It is further submitted that they have not challenged the order dated 06.02.2020 whereby the application under Order XXI Rule 32 of CPC has also been decided hence, said order attained the finality. There is a decree of compromise against the father of petitioners, therefore, they are bound by the said decree.

[06] Even otherwise, after appearance these petitioners filed a simple reply denying the judgment and decree against them. They have completely shown ignorance about the compromise decree dated 29.07.1993. Vide order dated 2902.20200, the Executing Court directed Chief Municipal Officer to obtain a spot report and after considering the spot report the learned Executing Court shall close the proceedings. The spot report to be submitted would clarify the status whether the compromise decree has been complied with or not. However, under the Legal Services Authority Act, when no appeal can be filed against the compromise decree then in execution proceeding also no such technical objections are liable to be taken to challenge the judgment and decree. The petitioners are bound by the judgment and decree.

[07] Although, the petitioners' counsel did not appear on one day only and they were proceeded ex-parte but for three years the petitioners did not care to know the status from the Advocate. The petitioners have also not pleaded as to what action he has taken against the counsel. It was a duty of the petitioners to remain in touch with the counsel till the case is not decided finally. Even otherwise, the petitioners are not challenging the order dated 06.02.2020 whereby the application under Order XXI Rule 32 has already been decided hence, no case for interference is made out.

[08] In view of the above, Misc. Petition is dismissed.

(VIVEK RUSIA) JUDGE Divyansh

Digitally signed by DIVYANSH SHUKLA Date: 2023.10.10 19:08:10 +05'30'