Madhya Pradesh High Court
Tekchand vs Dropadi Bai S/O Late Shri Ghanshyam Das ... on 7 April, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 7 th OF APRIL, 2025
SECOND APPEAL No. 2915 of 2024
TEKCHAND
Versus
DROPADI BAI S/O LATE SHRI GHANSHYAM DAS THROUGH LRS (I)
GANESHI LAL AND OTHERS
Appearance:
Shri Rinku Shakya - Advocate for the appellant alongwith appellant.
Shri Nikhil Rai- Advocate for respondents No. 1 and 3.
ORDER
Heard on I.A.No. 8090/2024, which is an application under Section 5 of the
Limitation Act seeking condonation of delay in filing the instant appeal.
2. It is stated that under some misadvise, the appellant has initially filed
M.P.No. 1079/2023. However, the same was dismissed as not maintainable on
30/9/2024 and immediately thereafter, the instant appeal has been filed.
3. Counsel for the respondents opposed the prayer for condonation of delay.
4. In view of the explanation given in the application and in the interest of
justice, the application is allowed and delay in filing the appeal is hereby
condoned.
5. Also heard on admission.
6. Appellant/judgment debtor has filed this appeal challenging the judgment
and decree dated 10/12/2022 passed in RCA No. 31/2021, whereby, the learned
First Appellate Court has affirmed the judgment and decree dated 4/1/2021 passed
by 12th Civil Judge, Class I, District Gwalior in Misc. Civil Case No.
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7003933/2016. By the aforesaid judgment and decree, an application under Order
XXI Rule 97 read with Section 151 of CPC has been rejected by the Courts below.
7. Admittedly, by the judgment and decree dated 11/12/1992 passed by this
Court in S.A.No. 56/1983, the decree holder has been held entitled to get
possession of the suit property admeasuring 20x32 sq. fts. situated at Jhanshi Loop
Road, Morar, Gwalior. The execution initiated in the year 1994 is still pending
before the Executing Court.
8. The appellant filed this application under Order XXI Rule 97 of CPC
basically on the grounds that after death of his father, he was not impleaded as
party in the case and another ground of challenge is that the part of the suit
property has been utilized for construction of road by the Municipal Corporation
and therefore, the decree holder is not entitled to the possession of the same.
9. I have heard the learned counsel for the appellant as also the appellant in
person.
10. It is submitted that after the death of his father Shri Dharmjeet, his legal
heirs were substituted and since the appellant was minor, he was represented
through legal guardian i.e. mother. It is submitted that even though to the
knowledge of the decree holder his name is Tekchand, his name was stated as
Bablu in the civil suit. He submits that because of wrong mentioning of his name,
he could not get adequate opportunity to defend his case in the civil suit. Both the
Courts have recorded a finding that the appellant has failed to substantiate his
ground that his name has wrongly been mentioned in the array of respondents.
Learned counsel for the appellant tried to convince this Court that there are some
documents to suggest his name as Tekchand, however, the fact remains that the
appellant being minor was represented through his mother who contested the case
up to this Court and therefore, it cannot be said that the appellant suffered any
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prejudice because of wrong mentioning of his name.
11. The another ground taken by the appellant that the portion of the suit
property has been utilized by Municipal Corporation for construction of road also
remained unsubstantiated before the Executing Court. Except his statement, there
is no material brought on record by him in support of his aforesaid submission.
Therefore, this ground is also not accepted.
12. The appellant appearing in person submitted that he is in possession of
land admeasuring 24 x 50 sq. fts and under the garb of the judgment passed by this
Court, the decree holder is trying to take possession of the entire property.
13. This ground is not taken by the appellant in his application. Even
otherwise the decree holder is entitled to get the possession of the portion which is
subject matter of the decree which is under execution.
14. No substantial question is arising for consideration of this Court in the
second appeal. The appeal is accordingly dismissed.
(ASHISH SHROTI)
JUDGE
JPS/-
