Madhya Pradesh High Court
Jagdish Prasad Sharma vs The State Of Madhya Pradesh on 31 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
MP No. 4222 of 2023
(JAGDISH PRASAD SHARMA Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 31-05-2024
Shri Rakesh Kumar Jain - Advocate for petitioner.
Shri Dilip Parihar - Panel Lawyer for respondents/State.
Heard on I.A.No.5454/2024, an application for modification of order
dated 28.07.2023 passed in the present miscellaneous petition seeking a
direction to Executing Court to conclude the execution proceedings within a
period of two months as the S.A.No.2015/2022 has not been admitted so far
and there is no stay.
2. It is submitted that by order dated 28.07.2023, this Court had set aside
the order dated 14.10.2022 passed by the Executing Court/Additional Judge,
Nasrullaganj to the Court of First Civil Judge, Senior Division, Sehore and had
directed the Executing Court to proceed further with the executing proceedings.
However in absence of any outer limit, the Executing Court is not taking any
steps.
3. Heard the learned counsel for the parties.
4. This Court has already considered that in absence of any stay, mere
filing of appeal would not amount to stay as per the provisions of Order 41
Rule 5 CPC. This Court has also considered that in the light of judgment
passed by the Supreme Court in the case of Raghvendra Swami Mutt Vs.
Uttaradi Mutt reported in (2016) 11 SCC 235, unless and until the substantial
questions of law are formulated, the High Court does not have any jurisdiction
to pass any interim order. It is the case of the petitioner that the second appeal
filed by respondent has not been admitted so far.
5. Under these circumstances, the Executing Court cannot keep the
execution proceedings pending on one pretext or the other. It is very easy to
obtain a decree but it becomes very difficult to get it executed. If the
respondents are not vigilant in prosecuting their second appeal, then they cannot
be given benefit of their lethargic attitude by keeping the execution proceedings
pending.
6. Although, the Supreme Court in the case of High Court Bar
Association Allahabad vs. State of U.P. decided on 29.02.2024 in
Criminal Appeal No.3589/2023 has held that the Constitutional Courts
should not fix an outer limit for the District Court to dispose of the case but in
the exceptional circumstances it can be done.
7. In the present case, the petitioner has already obtained a decree in
his favour. Although, the respondents have filed a second appeal but according
to the petitioner even an application for condonation of delay has not been
decided and the second appeal has not been admitted so far.
8. The petitioner has not filed copies of the order sheets of
S.A.No.2015/2022.
9. As per the order sheets available in the website, the last order in
S.A.No.2015/2022 was passed on 07.12.2023 by which the counsel for the
State has prayed for time to file necessary documents in support of the
pleadings made in the application under Section 5 of Limitation Act. Therefore,
an application for condonation of delay is still pending and has not been
decided so far.
10. Thus, it is clear that the second appeal has not been admitted so
far. This Court has already held that what cannot be done by the High Court,
the same cannot be done by the Executing Court.
11. Under these circumstances, this Court if of considered opinion
that an exceptional circumstance has been pointed out warranting fixing of time
limit for the Executing Court to decide the execution proceedings.
12. Accordingly, the Executing Court is directed to conclude the
execution proceedings within a period of four months from the date of
production of certified copy of this order.
13. However, this direction shall be subject to any interim order, which
shall be passed by the High Court in S.A.No.2015/2022.
14. With aforesaid observation, the I.A.No.5454/2024 is allowed.
15. The proceedings are finally disposed of.
(G.S. AHLUWALIA)
JUDGE
VB*
