Chandan Singh vs Kamlesh Yadav
2023 Latest Caselaw 14416 MP

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                IN         THE    HIGH COURT OF MADHYA PRADESH
                                        AT GWALIOR
                                              BEFORE
                                 HON'BLE SMT. JUSTICE SUNITA YADAV
                                   ON THE 2 nd OF SEPTEMBER, 2023
                                     MISC. APPEAL No. 1802 of 2023

              BETWEEN:-
              CHANDAN SINGH S/O SHRI BABU SINGH, AGED ABOUT
              70   YEARS, VILLAGE UDINA TEHSIL BHANDER
              (MADHYA PRADESH)

                                                                         .....PETITIONER
              (SHRI PRATIP VISORIYA, LEARNED COUNSEL FOR THE PETITIONER) .

              AND
              1.      KAMLESH YADAV S/O SHRI BABU SINGH, AGED
                      ABOUT 40 YEARS, VILLAGE UDINA TEHSIL
                      BHANDER (MADHYA PRADESH)

              2.      SANTOSH YADAV S/O SHRI BABU SINGH, AGED
                      ABOUT 35 YEARS, VILL. UDINA THASIL BHANDER
                      (MADHYA PRADESH)

              3.      MURTI D/O SHRI BABU SINGH W/O SUKHLAL,
                      AGED ABOUT 60 YEARS, VILL. UDINA THASIL
                      BHANDER (MADHYA PRADESH)

              4.      GEETA D/O SHRI BABU SINGH, AGED ABOUT 57
                      Y E A R S , VILL. RUAHA THASIL SEONDHA
                      (MADHYA PRADESH)

              5.      M. BHAGWATI W/O SHRI BABU SINGH, AGED
                      ABOUT 80 YEARS, VILL. UDINA THASIL BHANDER
                      (MADHYA PRADESH)

              6.      COLLECTOR THE STATE OF MADHYA PRADESH
                      DATIA (MADHYA PRADESH)

                                                                       .....RESPONDENTS
Signature Not(NONE
              Verified FOR THE RESPONDENTS)
Signed by: SANJAY
NAMDEORAO DURGEKAR
                      T h is appeal coming on for admission hearing this day, t h e court
Signing time: 04-09-2023
05:55:06 PM
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             passed the following:
                                                     ORDER

The present Misc. Appeal under Order 43 Rule 1 of CPC has been filed assailing the order dated 21/12/2022 passed by 2nd Additional Judge to the Court of First Additional District Judge, Datia, Dist. Datia in Regular Civil Appeal No. 26/2022, by which, application filed by the respondents under Order XLI Rule 5 of CPC has been allowed.

Brief facts of the case leading to filing of this appeal are that the appellant has filed a civil suit bearing RCS A-15/2017 for declaration and permanent injunction against the respondent. The civil suit was decreed in favour of the present appellant /plaintiff Chandan Singh. Thereafter, respondents have filed

appeal against impugned judgment and decree before first appellate court along with an application under Order XLI Rule 5 of CPC which was allowed by order impugned.

Learned counsel for the appellant submits that order impugned is against the settled principle of law and the same has been passed without affording opportunity of hearing to him.

Heard and perused the material available on record. On perusal of the record reveals that first appellate court after considering the aspect of alienation of the suit property and possession allowed the application.

In view of facts and circumstances of the case, impugned order passed by the first appellate court needs no interference.

Consequently, the instant appeal filed by the appellant is hereby Signature Notdismissed.

Verified However, it is directed that first appellate court shall take all Signed by: SANJAY NAMDEORAO DURGEKAR possible best endeavor to dispose of Regular Civil Appeal No. 26/2022 pending Signing time: 04-09-2023 05:55:06 PM

before it as early as possible preferably within a period of six months from the date of receipt of certified copy of this order by affording opportunity of hearing to both the parties in accordance with law.

Certified copy as per rules.

(SUNITA YADAV) JUDGE Durgekar

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 04-09-2023 05:55:06 PM