Madhya Pradesh High Court
Smt. Ruchita Agnihotri vs Ashok Kumar Jain on 26 February, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 26 th OF FEBRUARY, 2024
MISC. PETITION No. 4775 of 2023
BETWEEN:-
SMT. RUCHITA AGNIHOTRI D/O SHRI JAGDISH PRASAD
CHATURVEDI, AGED ABOUT 38 YEARS, OCCUPATION:
HOUSEWIFE R/O FAUZDAR MOHALLA, RAJNAGA,
CHHATARPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANUJ AGRAWAL - ADVOCATE)
AND
1. ASHOK KUMAR JAIN S/O KUNWAR LAL JAIN,
AGED ABOUT 73 YEARS, KANDARIYA CAMPUS,
KHAJURAHO, TEHSIL RAJNAGAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
2. MOHANLAL KORI S/O KHILAIYA KORI (DEAD)
THROUGH LRS.
3. SMT. GULAB RANI ALIAS RAMARTI ANURAGI
W/O LATE MOHANLAL ANURAGI, AGED ABOUT 59
Y E A R S , RESIDENT OF PURANI BASTI
KHAJURAHO TEHSIL RAJNAGAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
4. UMASHANKAR ANURAGI S/O LATE BABULAL
ANURAGI
5. KALLU ALIAS UMASHANKAR KORI S/O LATE
BABULAL KORI, AGED ABOUT 30 YEARS
6. SUMAN KORI D/O LATE BABULAL KORI, AGED
ABOUT 28 YEARS
7. SMT. BHUMANI BAI W/O LATE BABULAL KORI,
AGED ABOUT 50 YEARS,
ABOVE ALL RESIDENT OF PURANI BASTI
KHAJURAHO TEHSIL RAJNAGAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
Signature Not Verified
Signed by: SUDESH KUMAR
SHUKLA
Signing time: 2/27/2024
3:29:57 PM
2
8. SMT. GANSHI D/O LATE BABULAL KORI, AGED
ABOUT 35 YEARS, R/O GRAM TILGWA TEHSIL
AND DISTRICT (MADHYA PRADESH)
9. SMT. KOOMAR D/O LATE BABULAL KORI W/O
BABLU ANURAGI, AGED ABOUT 28 YEARS, R/O
KURYANA MOHALLA TEHSIL RAJNAGAR
DISTRICT (MADHYA PRADESH)
10. SMT. KESAR D/O LATE BABULAL KORI W/O
RAJJAN ANURAGI, AGED ABOUT 33 YEARS, R/O
KURYANA MOHALLA TEHSIL RAJNAGAR
DISTRICT (MADHYA PRADESH)
11. SMT. MAYA D/O LATE BABULAL KORI, AGED
ABOUT 36 YEARS, R/O NEAR MANDI TEHSIL
RAJNAGAR DISTRICT (MADHYA PRADESH)
12. STATE OF MADHYA PRADESH THROUGH
COLLECTOR CHHATARPUR (MADHYA PRADESH)
.....RESPONDENTS
(NO.1 BY SHRI D.K. TRIPATHI - ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
By the instant petition, the petitioner is challenging the validity of the
order dated 22.07.2023 (Annexure-P/5) passed by the Appellate Court in a
pending appeal bearing RCA No.41/2023.
Learned counsel for the petitioner sanguinely submits that a degree of
declaration was passed in favour of defendant-petitioner while allowing his
counterclaim by the trial Court. In the pending appeal, respondent-plaintiff
moved an application under Order XLI Rule 5 of CPC and execution of the
judgment & decree has been stayed by the appellate Court. He further submits
that declaratory degree was passed in favour of the defendant-petitioner and it
was not executable and therefore application under Order XLI Rule 5 of CPC
was not maintainable in the pending appeal before the appellate court and at-
best respondent could have moved application under Order XXXIX Rule 1 & 2
of CPC for seeking any sort of injunction from the appellate Court.
Indeed, I find substance in the submissions made on behalf of the
petitioner, albeit contrasted by counsel for respondent No.1, but in the
underlying facts and circumstances, the impugned order which has been passed
allowing the application under Order XLI Rule 5 of CPC filed by respondent is
not sustainable and it is accordingly set aside. However, respondent is set at
liberty to move appropriate application under Order XXXIX Rule 1 & 2 of
CPC within a period of 10 days from today and the appellate Court is directed
that if such application is moved, the same shall be heard and decided. Over
and above, the petitioner shall not alienate or create any third party interest over
the property for a period of 10 days. Further, the appellate Court will not be
influenced with this order while considering the application under Order XXXIX
Rule 1 & 2 of CPC and that will be decided on its merits in accordance with
law.
Petition stands allowed and disposed of.
(SANJAY DWIVEDI)
JUDGE
Sudesh
