Pawan vs Jitendra Kumar
2024 Latest Caselaw 4803 MP

Madhya Pradesh High Court

Pawan vs Jitendra Kumar on 19 February, 2024

Author: Pranay Verma

Bench: Pranay Verma

                                                           1
                            IN      THE    HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE PRANAY VERMA
                                             ON THE 19 th OF FEBRUARY, 2024
                                              MISC. PETITION No. 956 of 2024

                           BETWEEN:-
                           PAWAN S/O LATE SHRI RATANLAL JI KALA, AGED
                           ABOUT 65 YEARS, OCCUPATION: BUSINESS MAHABIR
                           MARG, KHATEGAON, DIST. DEWAS (MADHYA
                           PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI AMIT RAJ - ADVOCATE)

                           AND
                           1.    JITENDRA KUMAR S/O LATE SHRI RATANLAL JI
                                 KALA, AGED ABOUT 70 YEARS, OCCUPATION:
                                 BUSINESS MAHABIR MARG, KHATEGAON, DIST.
                                 DEWAS (MADHYA PRADESH)

                           2.    KAILASH CHANDRA S/O LATE SHRI RATANLAL JI
                                 KALA, AGED ABOUT 82 YEARS, OCCUPATION:
                                 BUSINESS MAHABIR MARG, KHATEGAON, DIST.
                                 DEWAS (MADHYA PRADESH)

                           3.    SURESH CHANDRA S/O LATE SHRI RATANLAL JI
                                 KALA, AGED ABOUT 78 YEARS, OCCUPATION:
                                 BUSINESS MAHABIR MARG, KHATEGAON, DIST.
                                 DEWAS (MADHYA PRADESH)

                           4.    SMT. USHA DEVI @ KAPURIBAI D/O LATE SHRI
                                 RATANLAL JI KALA, AGED ABOUT 79 YEARS,
                                 OCCUPATION:    HOUSEWIFE   SECTOR    124,
                                 SARVDHAM COLONY, KOLAR ROAD, BHOPAL
                                 (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                           (NONE)

                                 This petition coming on for admission this day, th e court passed the
                           following:
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 20-02-2024
10:12:40
                                                               2
                                                               ORDER

1. By this petition preferred under Article 227 of the Constitution of India the petitioner/defendant No.3 has challenged the order dated 05.02.2024 passed by the executing Court whereby warrant of possession has been issued against the judgment debtors on the ground that the application under Order 41 Rule 5 of the CPC preferred by them in the appeal preferred under Section 96 of the CPC against the judgment and decree dated 22.11.2023 passed by the trial Court has been rejected.

2. Though the learned counsel for the petitioner has submitted that in the impugned decree passed by the trial Court which is the subject matter of

appeal before the appellate Court, there is no direction for delivery of possession yet the executing Court has issued warrant of possession, in my opinion, looking to the fact that in the appeal the record has already been received and all the parties are already represented and the case is fixed for 04.04.2024 for final hearing, without entering into the merits of the case, I deem it fit and proper to direct the appellate Court namely the First District Judge, Khategaon, District Dewas to decide the appeal itself by the end of April, 2024.

3. Till the decision of the appeal, the impugned order dated 05.02.2024 passed by the executing Court shall remain in abeyance.

4. Since this order is being passed without issuance of notice to respondent No.1, it shall be open for him to seek review/recall of this order.

5. With the aforesaid direction, petition stands disposed off.

(PRANAY VERMA) JUDGE ns