Madhya Pradesh High Court
Rajesh Kumar vs Badambai on 27 March, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-IND:8267
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 27th OF MARCH, 2025
MISC. PETITION No. 1270 of 2025
RAJESH KUMAR AND OTHERS
Versus
BADAMBAI AND OTHERS
Appearance:
Shri Virendra Thakur - learned counsel for the petitioner.
Shri Raghav Shrivastava - learned counsel for the respondent.
ORDER
This miscellaneous petition has been preferred by the
petitioners/defendants 1-4 challenging the order dated 27/2/2025 passed by
District Judge, Kannod, District Dewas in RCA No.27/2024, whereby First
Appellate Court in the pending regular civil appeal filed by
petitioners/defendants 1-4 has dismissed the petitioners' application under
Order XLI Rule 5 of C.P.C. filed with the prayer for staying the effect and
operation of the judgment and decree dated 14/11/2024.
2. Learned counsel for the petitioners submits that by the judgment and
decree dated 14/11/20224 passed by First Civil Judge Senior Division,
Kannod, District Dewas in Civil Suit No.83-A/2022, Trial Court has decreed
respondent 1-2/plaintiffs' civil suit for declaration of 1/5-1/5 share and
separate possession after partition of lands Khasra No.368 area 3.2400
hectare and Khasra No.346/1 area 1.6500 hectare and First Appellate Court
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without assigning any reason, has dismissed the application under Order XLI
Rule 5 of C.P.C. Learned counsel for the petitioners submits that the
petitioners are in possession of the suit lands and although by the judgment
and decree passed by Trial Court respondents 1-2/plaintiffs have been held to
be joint Bhumiswami of the suit lands, but that cannot be a ground to reject
the prayer for staying effect and operation of the judgment and decree passed
by Trial Court. He submits that during pendency of regular first appeal and
in view of the judgment and decree of partition and separate possession, till
the decision of regular first appeal, First Appellate Court ought to have
stayed the effect and operation of the judgment and decree passed by Trial
Court. With these submissions, he prays for allowing the miscellaneous
petition. In support of his submissions, learned counsel for the petitioners
placed reliance on an interim order dated 21/9/2023 passed by this Court in
First Appeal No.843/2016 (Deepak Bhargava Vs. Smt. Rajesh Bhargava and
others) at Jabalpur.
3. Heard learned counsel for the petitioners and perused the record.
4. In the present case, notices have not been issued to the respondents,
but in my considered opinion, the fact that respondents 1-2/plaintiffs are joint
owner, cannot be a ground to reject the application under Order XLI Rule 5
of C.P.C. for staying the effect and operation of the judgment and decree
passed by Trial Court, which has been filed seeking stay in respect of
execution of judgment and decree of partition and separate possession.
5. In view of the aforesaid order passed in the case of Deepak
Bhargava Vs. Smt. Rajesh Bhargava (supra), the impugned order appears to
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be unsustainable, hence, by allowing the miscellaneous petition, the matter is
remanded to First Appellate Court to decide the application under Order XLI
Rule 5 of C.P.C. afresh and in the meantime, effect and operation of the
judgment and decree dated 14/11/2024 passed by Trial Court shall remain
stayed.
6. With the aforesaid observations and directions, this miscellaneous
petition is allowed/disposed off.
7. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
Arun*
