Madhya Pradesh High Court
Rajesh Verma vs Late. Shobhna Trivedi on 28 February, 2024
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 28th OF FEBRUARY, 2024
MISC. PETITION No. 1894 of 2022
BETWEEN:-
RAJESH VERMA S/O LATE RAMESH VERMA,
AGED ABOUT 40 YEARS, OCCUPATION: TAILRING
SHOP, ADDRESS BUNGLAW NO. 125, SIMROL
ROAD, MHOW (MADHYA PRADESH)
.....PETITIONER
(BY MS. REKHA SHRIVASTAVA - ADVOCATE )
AND
LATE. SHOBHNA TRIVEDI W/O P. RAMBU
TRIVEDI, AGED ABOUT 49 YEARS, OCCUPATION:
SERVICE, ADDRESS HALL MUKAM 38, SAMPAT
FORM 5 CROSS ROAD, BICHOLI MARDANA,
TEHSIL AND DISTRICT INDORE (MADHYA
PRADESH) THROUGH AAM MUKHTIYAAR
DARMENDRA S/O. RAMESHCHANDRA VERMA,
R/O. LAVESH VILLA, MHOW - PITHAMPUR
ROAD, MAHOWGAON TEHSILD MHOW,
DISTRICT INDRE
.....RESPONDENTS
(BY SHRI R.R. TRIVEDI - ADVOCATE )
_________________________________________________________________________
Reserved on :-23.1.2024
Pronounced on :-28.2.2024
This petition having been heard and reserved for orders, coming on for
pronouncement this day, Hon'ble Justice Pranay Verma, pronounced the
following :
______________________________________________________________
ORDER
1. With the consent of the learned counsel for the parties, the matter is
finally heard.
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2. This petition under Article 227 of the Constitution of India has been
preferred by the petitioner / judgment debtor against the order dated 24/3/2023
passed by the Executing Court whereby his objection to the maintainability of
the execution proceedings under Order 21 Rule 10 and Order 21 Rule 22 of
the CPC has been rejected.
3. The proceedings have been instituted for execution of the decree dated
7/12/2015 passed in Civil Suit No.237-A/2011 by the trial Court whereby, the
original decree holder has been held entitled for recovery of a sum of
Rs.1,20,000/- and arrears of Rs.96,000/-. The execution proceedings have been
filed by Dharmendra S/o. Rameshchandra Verma as power of attorney holder
of son of the deceased decree holder.
4. Objection was raised by the judgment debtor that the original decree
holder Shobhna Trivedi has expired in June, 2020. Her only son Rajdeep
Trivedi is residing abroad for quite sometime and was not present in the town
on 21/2/2022 when the execution proceedings were filed. No power of
attorney has been produced. No particulars have been mentioned in the
execution application as regards death of Shobhna Trivedi and the date on
which the power of attorney was executed by Rajdeep Trivedi in favour of
Dharmendra Verma. It is also not clear that Dharmendra Verma is in fact the
power of attorney holder entitled to institute the proceedings which have not
been instituted in terms of Order 21 Rule 10 and Rule 11 (2) of the CPC.
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5. The provisions of Order 21 Rule 11(2) of the CPC are as under :-
"(2) Written application. - Save as otherwise provided by
sub-rule (1), every application for the execution of a
decree shall be in writing, signed and verified by the
applicant or by some other person proved to the
satisfaction of the Court to be acquainted with the facts of
the case, and shall contain in a tabular form the following
particulars, namely :-
-----------------"
6. As per the aforesaid provision an execution application can be filed not
only by the decree holder but also by some other person proved to the
satisfaction of the Court to be acquainted with the facts of the case. Even if the
execution proceedings have not been instituted by Rajdeep Trivedi, the legal
heir of deceased decree holder Shobhna Trivedi, then also the same instituted
by Dharmendra Verma who is stated to be his power of attorney holder would
be deemed to have been properly instituted. It is not the case of the judgment
debtor that Dharmendra Verma is not a person who is not acquainted with the
facts of the case. The execution application has been filed and entertained by
the executing Court hence there would be a presumption that Dharmendra
Verma is so acquainted with the facts of the case.
7. Moreover, the execution application has been filed by Dharmendra
Verma on the basis of power of attorney executed in his favour by Rajdeep
Trivedi which is on record of the executing Court. There is no reason to
disbelieve the same. Pertinently in the execution application, Rajdeep Trivedi
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has also put his signatures hence the defect, if any, as pointed out by the
judgment debtor pales into insignificance. It is not denied by the judgment
debtor that Rajdeep Trivedi is the heir of Shobhna Trivedi. Merely for non-
mentioning the date of death of Shobhna Trivedi the execution proceedings
would not be vitiated in any manner.
8. Thus, the execution application filed by Dharmendra Verma as power of
attorney holder of Rajdeep Trivedi which has also been signed by Rajdeep
Trivedi cannot be said not to have been duly instituted. The executing Court
hence has not committed any error in rejecting the application filed by the
judgment debtor. As a consequence, the impugned order is affirmed. The
petition is dismissed.
(PRANAY VERMA)
JDUGE
SS/-
