Madhya Pradesh High Court
Vishal vs Nagar Palika Parishad Khargone on 10 February, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:3526
1 MP-4789-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 10th OF FEBRUARY, 2025
MISC. PETITION No. 4789 of 2022
VISHAL AND OTHERS
Versus
NAGAR PALIKA PARISHAD KHARGONE AND OTHERS
Appearance:
Shri Shyam Singh Tanwar - Advocate for the petitioners.
Shri Soumitra Bajaj, learned counsel for the respondent [R-2].
ORDER
With the consent of learned counsel for the parties, the matter is
finally heard.
1. This petition under Article 227 of the Constitution of India has
been preferred by the petitioners/decree holders being aggrieved by the order
dated 04.07.2022 passed by the Executing Court whereby their execution
application has been dismissed as barred by time.
2. The record indicates that the petitioners had filed Civil Suit
No.79-A/1998 in the Court of Civil Judge, Class-I District Khargone for
permanent injunction. The same was dismissed by judgment and decree
dated 16.02.2004. Appeal by the petitioners was however allowed by the
Appellate Court by judgment and decree dated 31.01.2006 passed in Civil
Appeal No.9-A/2005 by the First Additional District Judge, Khargone, East
Nimar. Therein decree was passed in favour of the petitioners to the effect
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that if they would furnish an undertaking that in case the Nagar Palika is
constructing the shopping complex at the same place then in the same
manner as agreement has been executed with the neighbours of the
petitioners they would also execute similar agreement and till then possession
of the petitioners shall not be disturbed. The decree was for permanent
injunction restraining the respondents in case of furnishing of an undertaking
by the petitioners.
3. Thereafter, the petitioners filed an application for execution of
the decree. Therein an objection was raised as regards the same being barred
by time. The said objection was accepted by the Executing Court by the
impugned order holding that the period of limitation under Article 136 of the
Limitation Act for execution of decree is twelve years. The execution
application for executing the decree dated 31.03.2006 has been filed on
23.04.2019 which is barred by time.
4. It is submitted by learned counsel for the petitioners that in the
judgment there was a direction that undertaking shall be furnished by the
petitioners after which the decree shall be prepared. The decree was prepared
after a period of three days hence it would be assumed that the undertaking
was furnished by the petitioners. The decree has in any case not been
challenged by the respondents hence has attained finality. After passing of
the decree the petitioners had been repeatedly approaching the respondents
by preferring applications for compliance of the decree. However, they did
not do so hence it could not have been held that the execution application is
barred by time.
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5. Per contra, learned counsel for the respondents has submitted
that no undertaking was furnished by the petitioners in compliance of the
decree passed by the Appellate Court hence the execution application has
rightly been dismissed.
6. I have considered the submissions of learned counsel for the
parties and have perused the record.
7. In the decree which was passed by the Appellate Court there
was a specific direction for the petitioners to furnish an undertaking. The
language of decree is plain and simple and leaves no room for doubt that
undertaking was to be furnished before the Court itself. Though the
undertaking was in respect of the respondents but the same was mandatorily
required to be furnished by the petitioners before the Court itself. Any
correspondence made by the petitioners with the respondents as regards
execution of the decree cannot be regarded to be a step taken by them
towards its execution.
8. The original records of the Appellate Court as well as the Trial
Court were called for decision of this petition. On a careful perusal of the
records of both the Courts below, it is found that no undertaking as was
directed to be furnished was ever furnished by the petitioners. Though in this
petition such an undertaking has been filed as Annexure P/5 dated
31.03.2006 but it does not bear any endorsement of actually having been
filed. In any case since the same has not been found in the record of the
Courts below it cannot be said that the same was ever furnished by the
petitioners. Thus apparently the pre requisite for execution of decree has not
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been fulfilled by the petitioners.
9. Only for the reason that the decree was prepared after a period
of three days from the date of judgment it cannot be legally presumed that
the undertaking must have been furnished by the petitioners and then only
the decree must have been prepared. The preparation of decree is a
ministerial act and only for the same having been prepared no presumption
can be drawn that undertaking was furnished by the petitioners. The decree
not having been challenged by the respondents and having attained finality is
not relevant for the purpose of adjudication of this petition.
10. Admittedly, the decree was passed on 31.03.2006 and the
execution application has been filed on 23.04.2019. The undertaking as was
required to be furnished by the petitioners was not furnished by them ever
though there was no period fixed for furnishing of the same. Even assuming
that the undertaking can still be furnished then the position would be that the
decree has not become enforceable in case of which the execution
application filed by the petitioners was itself pre mature.
11. Thus, in view of the aforesaid discussion, I do not find any error
having been committed by the Executing Court in passing the impugned
order. The same is hereby affirmed as a result of which, the petition is
dismissed.
(PRANAY VERMA)
JUDGE
jyoti
