Madhya Pradesh High Court
Ganpat vs Late Smt. Gangabai Through Lrs Manohar ... on 14 February, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2025:MPHC-IND:4058
1 MP-2664-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 14 th OF FEBRUARY, 2025
MISC. PETITION No. 2664 of 2022
GANPAT
Versus
LATE SMT. GANGABAI THROUGH LRS MANOHAR SINGH THROUGH
LRS SMT. VIDHYA BAI AND OTHERS
Appearance:
Ms. Seema Sharma, counsel for the petitioner.
Shri Rajendra Kumar Samdani Dad, counsel for the respondent No.2
appeared through v.c..
Shri Mayank Mishra -P.L. for State.
ORDER
The present petition is filed under Article 227 of the Constitution of India
challenging the legality and validity of the orders dated 21.4.2022 and 13.5.2022
passed by VIII District Judge, Ujjain in Execution case No.38-A/82 (C.SUIT) EX,
by which the application of the petitioner under section 151 CPC has been
rejected.
2. Facts of the case in short as that Gangabai, Beniram and Manibai were
joint owners of the land survey No. 3427/1, area 0.293 hectare and survey No.
3430/1 area 0.930 hectare of village Jaisinghpura, Tahsil and District Ujjain (for
short the suit land). All of them had 1/3 share in the suit land. On 22.02.1972
plaintiff Gangabai and Beniram executed a registered sale deed in favour of Gajja
by way of security in respect of a loan of Rs. 3,000/-. Thereafter, Gangabai and
Beniram executed another sale deed dated 21.5.1973 in favour of Ganpat (present
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petitioner). Lateron Gangabai filed a civil suit No. 38-A/1982 seeking declaration
of the aforesaid sale deed as void and 1/3rd share in the suit land. Vide judgment
and decree dated 18.01.1983 the suit was declared in favour of plaintiff Gangabai
and defendant Nos.1 and 2 were directed to hand over possession of the suit land
to plaintiff Gangabai and she was directed to deposit Rs.3,000/- in the Court for
payment to defendant Nos.1 and 2.
3. Being aggrieved by the aforesaid judgment and decree Ganpat filed First
Appeal No. 31/83 before this Court. Vide order dated 22.3.1983 this Court stayed
the execution of the judgment and decree dated 18.1.1983 and thereafter vide
order dated 15.12.1983 the order of stay was modified. On 7.5.1983 Gangabai
filed execution proceeding and deposited Rs.3,000/- in the CCD. Vide order dated
15.12.1983 on an application filed by Gangabai appellant, this Court directed
Ganpat to deposit Rs.2,000/- per year during the pendency of the appeal.
4. The matter also travelled to the Supreme Court and the SLP filed by the
petitioner was dismissed as withdrawn vide order dated 9.10.2006. The petitioner's
application under Order 21 Rule 29 CPC r/w section 151 CPC was dismissed by
order dated 31.5.2014 by the executing court in Execution case No.38-A/08.
Being aggrieved by the said order, the petitioner filed Misc.Petition No.
6044/2008. The relevant para Nos.12 to 14 are reproduced herein :-
"12. In the case of Zila Singh and others Vs. Hazari and others, AIR
1979 SC 1066 the Apex Court has held that the statutory right of the
pre-emption though not amounting to an interest in the land is a right
which attaches to the land which can be enforced against a purchaser by
the person entitled to pre-empt. The purchaser would be a person
claiming under the original pre-emptor decree holder and if the decree
holder could have made an application for execution of the decree as
decree holder the purchaser of the land certainly be entitled to maintain
the execution proceeding.
13. In the case of Rajkumar Vs. Sardarilal (2004) 2 SCC 601 , the
Apex Court has held that under Order 22 Rule 10 CPC and under Order
21 Rule 16 CPC lis pendence transferee from the defendant attracts the
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purchaser of the suit property during litigation remains bound by the
decree to be passed against his seller/defendant. It is the discretion of
the court to allow him to join the suit/litigation. In the present case, the
executing court has rightly exercised its discretion by recognizing the
sale by the decree holder to M/s Kanha Township Pvt.Ltd. In view of
the above, no interference in this miscellaneous petition is called for.
14. I do not find any infirmity and illegality in the impugned order. In
the result, the petition is dismissed accordingly."
5. Against the said order, the petitioner preferred Special Leave to Appeal
(C) No. 769/2020. The said Spl.Leave to Appeal(C) No. 769/2020 was dismissed
with the following observations :-
"We decline to interfere in this Special Leave Petition. The
Special Leave Petition is dismissed accordingly.
However, needless to observe that the transferee will have
to take recourse of appropriate remedy for seeking
possession of the suit property, including by filing
application under Order XXI Rule 16 before the Executing
Court and not forcibly dispossess the petitioner.
6. Counsel for the petitioner vehementaly argued that as per observation of
the Apex Court, transferee has not filed any application before the Executing
Court, therefore the Executing Court has erroneously rejected this application
under section 151 CPC.
7. This Court finds no merit in the said contention, the said objection was
considered by the Executing Court and held that no such application was
necessary because the transferee has already filed an application which was
decided on 30.12.2021 and the Court in the earlier order has treated the
application for execution filed by the original plaintiff to be an application for
execution by the transferee. In view of aforesaid, no fresh application was
required to be filed by the transferee.
8. Admittedly against the petitioner as a decree has been passed and this
Court while deciding the petition M.P. No. 6044/2018 has already held that
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Executing Court has rightly exercised its discretion by recognizing the sale by the
decree holder in favour of M/s Kanha Township Pvt. Ltd.. Thus, this Court does
not find any illegality or perversity in the order warranting any interference under
Article 227 of the Constitution of India.
The petition is dismissed. The Executing Court will proceed in accordance
with law.
(VIJAY KUMAR SHUKLA)
JUDGE
MK
