Smt. Sandhya Rajpoot vs Smt. Madhvi Jain
2024 Latest Caselaw 14100 MP

Madhya Pradesh High Court

Smt. Sandhya Rajpoot vs Smt. Madhvi Jain on 14 May, 2024

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT GWALIOR
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE VINAY SARAF
                                                 ON THE 14 th OF MAY, 2024
                                             MISC. PETITION No. 3524 of 2022

                           BETWEEN:-
                           1.    SMT. SANDHYA RAJPOOT W/O SHRI JASWANT
                                 SINGH RAJPUT, AGED ABOUT 47 YEARS,
                                 OCCUPATION: HOUSEWIFE NEAR CANARA BANK
                                 DAL BAZAR TIRAHA LASHKAR (MADHYA
                                 PRADESH)

                           2.    KUMARI AKANSHA D/O JASWANT SINGH
                                 RAJPOOT, AGED ABOUT 23 YEARS, NEAR
                                 CANARA BANK DAL BAZAR TIRAHA, LASHKAR,
                                 GWALIOR (MADHYA PRADESH)

                           3.    KUMARI ANJALI (MINOR) THROUGH MOTHER
                                 SMT SANDHYA RAJPOOT D/O JASWANT SINGH,
                                 AGED ABOUT 16 YEARS, NEAR CANARA BANK
                                 DAL BAZAR TIRAHA, LASHKAR, GWALIOR
                                 (MADHYA PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI RAJEEV SHRIVASTAVA - ADVOCATE)

                           AND
                           1.    SMT. MADHVI JAIN W/O SHRI MUKESH JAIN,
                                 AGED   ABOUT     49  YEARS, OCCUPATION:
                                 HOUSEWIFE MADAI MOHALLA KILA GATE
                                 (MADHYA PRADESH)

                           2.    THROUGH PROPWRITER      JASWANT SINGH
                                 RAJPOOT S/O RAMCHARAN SINGH RAJPOOT M/S
                                 PRADEEP TRADING COMPANY NEAR CANARA
                                 BANK   DAL    BAZAR  TIRAHA,  LASHKAR,
                                 JUDGMENT DEBPTOR (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                           (BY SHRI HARESH KUMAR AGRAWAL- ADVOCATE FOR RESPONDENT
                           NO.1)

                                 This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: VISHAL
UPADHYAY
Signing time: 15-05-2024
10:47:42 AM
                                                               2
                           following:
                                                               ORDER

1. Order dated 27.06.2022 passed in case No. B-6/20 Execution/2020 passed by Seventh Civil Judge Junior Division Gwalior is under challenge in the instant petition whereby the application filed by the petitioner under Section 151 of the CPC for staying the execution proceedings was dismissed by the executing court. Respondent filed a suit for recovery against one Pradeep Trading Company proprietor Jaswant Singh in the court of Civil Judge Class-II, Gwalior bearing Cos No.48/2018 which was decreed ex-parte and execution of the decree was preferred against the petitioner as Jaswant Singh is missing since

long. After getting the knowledge of the ex-parte decree, petitioner has preferred an application under Order IX Rule 13 of the CPC for setting aside the ex-parte decree, which is pending. Property of the petitioner was allegedly attached during the execution, therefore, an application under Order XXI Rule 58 of the CPC was filed by the petitioner which is also pending. . In the execution petition, petitioner has moved an application under Section 151 of the CPC for staying the proceedings of the execution till disposal of the aforesaid MJC under Order IX Rule 13 and under Order XXI Rule 58 of the CPC. By the impugned order, the application has been dismissed.

2. Learned counsel for the petitioner submits that as the petitioner has already moved an application under Order IX Rule 13, for setting aside the ex- parte decree, therefore, executing court ought to have stayed the execution proceedings till disposal of the MJC case registered upon the application filed under Order IX Rule 13 of the CPC and the order passed by executing court is liable to be set aside. He relied on the judgement of the Co-ordinate Bench of this Court passed in the matter of Mukesh Kumar Vs. Mamta Bai, 2019 (2)

MPLJ 643, whereby the Co-ordinate Bench has held that in proceedings pending under Order IX Rule 13 of the CPC, the Court may stay the execution of the ex-parte decree. The judgment is not helpful to the petitioner because in the present matter, the petitioner has not assailed the order passed in MJC proceedings and the order under challenge is passed in execution proceedings.

3. At this juncture, learned counsel for the petitioner has informed this Court that an application filed in MJC proceedings is also pending for staying the execution. The same may be considered in view of the order passed in the matter of Mukesh Kumar (supra)

4. Considering the fact that executing court has no jurisdiction to stay the execution and the executing court cannot go behind the decree, no illegality or irregularity or jurisdictional error has been committed by the executing court in dismissing the application and the order passed by the executing court appears to be just and proper.

5. Consequently, the admission is declined and petition is dismissed.

(VINAY SARAF) JUDGE Vishal