Babulal Gupta vs Smt. Usha Beri(Dead) Through Lrs ...
2024 Latest Caselaw 12468 MP

Madhya Pradesh High Court

Babulal Gupta vs Smt. Usha Beri(Dead) Through Lrs ... on 3 May, 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 3 rd OF MAY, 2024
                                                MISC. PETITION No. 7186 of 2023

                           BETWEEN:-
                           BABULAL GUPTA S/O LAXMI PRASAD GUPTA, AGED
                           ABOUT 50 YEARS, OCCUPATION: THROUGH ATTORNEY
                           HOLDER /SON SHRI SANJAY GUPTA S/O BABULAL
                           GUPTA AGED ABOUT 47 YEARS R/O 83 OLD SAIFIYA
                           COLLEGE ROAD CHOWKI, IMAMBADA, DISTRICT
                           BHOPAL R/O NEAR ROYAL MARKET, OPPOSITE G.P.O.
                           BHOPAL DISTRICT BHOPAL (MADHYA PRADESH)

                                                                                            .....PETITIONER
                           (BY MOHD. AADIL USMANI - ADVOCATE)

                           AND
                           1.     SMT.   USHA BERI(DEAD)       THROUGH    LRS
                                  RAMPRAKASH BERI S/O A.N. BERI, AGED ABOUT
                                  55 YEARS, R/O 11, BAGHIRA APARTMENT, ARERA
                                  COLONY, BHOPAL, DISTRICT BHOPAL (MADHYA
                                  PRADESH)

                           2.     SMT. SUNITA SINGH W/O DR. S.C. SINGH, AGED
                                  ABOUT 35 YEARS, R/O 11 BAGHIRA APARTMENT,
                                  ARERA COLONY, BHOPAL DISTRICT BHOPAL
                                  (MADHYA PRADESH)

                           3.     SUNIL BERI S/O RAMPRAKASH BERI, AGED
                                  ABOUT 55 YEARS, R/O 11 BAGHIRA APARTMENT,
                                  ARERA COLONY, BHOPAL DISTRICT BHOPAL
                                  (MADHYA PRADESH)

                                                                                          .....RESPONDENTS
                           (BY SHRI ABHISHEK AWASTHI - ADVOCATE)

                                  This petition coming on for admission this day, th e court passed the
                           following:
                                                                ORDER

Counsel for the petitioner by the instant petition filed under Article 227 of

the Constitution of India is assailing the order dated 12.10.2023 (Annexure P/1) whereby the application filed by the plaintiff/petitioner under Order 21 Rule 29 read with Section 151 of CPC has been rejected by the trial Court. According to him, in the said application, it is claimed by the petitioner/plaintiff that the execution proceeding pending in respect of decree which is sought to be quashed in a civil suit, may be stayed till the civil suit is decided. He further submits that if ultimately decree is executed, the very purpose of filing the suit would be frustrated because after executing the decree, it would be difficult to set aside the same on the ground that the said decree has been obtained by playing fraud and, therefore, the trial Court should direct the Executing Court

not to proceed further till the decision of the civil suit.

2. Per contra, Shri Abhijeet Awasthi, learned counsel appearing for the respondents submits that the decree has been passed in the year 2015 whereas the civil suit has been filed by the petitioner in the year 2023 seeking reliefs for setting aside the judgment and decree which is sought to be executed and further the pending execution proceeding in regard to that judgment and decree.

3. The Executing Court where the suit is pending has rejected the application saying that in absence of any interim order in favour of the plaintiff/petitioner, the execution proceeding cannot be stayed only on the ground that a suit has been filed by him for setting aside the judgment and decree and also the pending execution proceeding.

4. Under the existing circumstances, I do not find any substance in the submission made by counsel for the petitioner that if execution proceeding is not stayed, the very purpose of filing the suit would be frustrated. Filing the suit after such a long period especially under the circumstance when the parties had

contested the matter in the first found and ultimately, if the decree was obtained by fraud by a party, then the other party should have filed a suit challenging the same, but it does not make the plaintiff/petitioner entitled to stay the pending execution proceeding. Merely because a suit has been filed seeking declaration of decree which is put for execution and has attained finality, the execution proceeding cannot be stayed. However, it is something surprising that when a decree was put for execution in the year 2015, then as to why, the Executing Court failed to discharge its obligation to implement the same even after passing the period of nine years. Under such circumstances, the Executing Court, is directed to expedite the proceeding and implement the decree passed which has attained finality before 2015.

5. Accordingly, I do not find any illegality in the order passed by the Executing Court rejecting the application filed under Order 21 Rule 29 of CPC by the petitioner/judgment debtor.

6. The petition, being without any substance is hereby dismissed.

(SANJAY DWIVEDI) JUDGE rao