[Cites 2, Cited by 0]
Madhya Pradesh High Court
Mahakaurbai vs Ramsingh S/O Jashwantsingh Mandloi ... on 5 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:162
1 MP-7102-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
ON THE 5 th OF JANUARY, 2026
MISC. PETITION No. 7102 of 2025
MAHAKAURBAI AND OTHERS
Versus
RAMSINGH S/O JASHWANTSINGH MANDLOI DECEASED
THROUGH LRS PHULKUNWAR AND OTHERS
Appearance:
Shri Arihant Kumar Nahar, learned counsel for the petitioners through
Video Conferencing.
RESERVED ON : 12.12.2025
PRONOUNCED ON : 05.01.2026
..............................................................................................................................................
ORDER
The petitioners before this Court have filed the present petition under
Article 227 of the Constitution of India being aggrieved by the order dated
29.11.2025 passed by the Civil Judge, Senior Division, Anjad, District -
Barwani, whereby the application filed by the petitioners under Order XXI
Rule 26 of the Code of Civil Procedure, 1908 has been rejected and warrant
of possession was issued.
02. Draped in brevity, the relevant facts are that the petitioners are
the judgment debtors in Execution Case No.EX-A/12/2025 pending before
the Court of Civil Judge, Senior Division, Anjad arising out of Civil Suit
No.6-A/2000 pertaining to declaration of title and possession. Vide judgment
NEUTRAL CITATION NO. 2026:MPHC-IND:162
2 MP-7102-2025
and decree dated 03.06.2004, the learned trial Court decreed the suit in
favour of original plaintiffs.
03. Being aggrieved by the aforesaid order, the defendants preferred
First Appeal No.29-A/2005 before the III rd Additional District Judge,
Barwani which came to be dismissed by judgment dated 25.03.2006,
meaning thereby, the judgment and decree passed by the trial Court was
affirmed.
04. Feeling aggrieved by the order passed by the learned Additional
District Judge, the defendants approached this Court by way of Second
Appeal No.488 of 2006. The said second appeal remained pending for
several years and the execution proceedings initiated in the year 2007 were
kept in abeyance from time to time due to pendency of the second appeal.
05. During the pendency of the second appeal, petitioner No.2
expired on 28.02.2019, respondent No.1 died on 21.09.2022 and respondent
No.2 died on 28.10.2021. Thereafter, an application under Order XXII Rule
10-A of the CPC was filed by the respondents on 13.07.2023.
06. The appellants in the second appeal filed certain interlocutory
applications along with an application for condonation of delay. The
applications were heard and by detailed order dated 06.10.2025, this Court
has held that no sufficient case has been shown and all the applications were
rejected. As a consequence, second appeal was also dismissed as abated by
holding that right to sue does not survive in favour of the remaining
appellants or respondents.
07. The execution case was registered in the year 2007 and remained
NEUTRAL CITATION NO. 2026:MPHC-IND:162
3 MP-7102-2025
pending. however, in view of certain directions issued by this Court, the
executing Court stayed the further proceedings vide order dated 28.06.2017.
Thereafter, vide order dated 10.07.2021, the execution case was marked as
'dormant' and consigned to the record room.
08. After the order dated 06.10.2025 passed in the second appeal, the
learned executing Court vide order dated 03.11.2025 revived the execution
case on the ground that since the second appeal has been dismissed, the
decree has attained finality.
09. According to the petitioners they continuously remained in
possession of the suit land (agricultural) since long even prior to institution
of civil suit and they were earning their livelihood from the said land. In such
circumstances, the petitioners filed an application under Order XXI Rule 26
of the CPC praying that the execution proceedings with respect to hand over
the possession be stayed until the petitioners avail the appropriate remedy
against the order dated 06.10.2025.
10. Thereafter, vide order dated 29.11.2025, the learned executing
Court has dismissed the application and issued the warrant of possession
against the petitioners / judgment debtor. Hence, the present miscellaneous
petition is before this Court.
11. Learned counsel for the petitioners submits that the judgment
debtors were not in a position to press the arguments on the application,
however, the learned executing Court treated this as a waiver of hearing,
only heard the decree holder and proceeded to reject the application. Learned
counsel further submits that the learned executing Court has simply held that
NEUTRAL CITATION NO. 2026:MPHC-IND:162
4 MP-7102-2025
since the second appeal has been dismissed, the decree has attained finality.
The judgments debtor were not given the full opportunity to project their
case and right to advance the argument was closed and on the very same day,
the application was rejected and the warrant of possession was issued. In
such circumstances, a prayer has been made that the impugned order be set
aside.
12. I have heard learned counsel for the petitioners at length and
perused the order passed by the executing Court.
13. The perusal of the impugned order reveals that a request has
been made on behalf of the judgment debtors to stay the execution
proceedings on the ground that the order dated 06.10.2025 passed by this
Court has not yet become final. Again a writ petition has been filed before
this Court and further proceedings are also being filed before the Apex Court
in the alternative. Till the final order is received, the execution proceedings
be stayed. The learned executing Court has observed that almost 21 years
have passed from the date of decision of the trial Court dated 03.06.2004, but
the said decree has not been executed. In such situation, by stopping the
proceedings in hand to get a stay order from this Court as well as Apex
Court, the decree holder will have to face more trouble than the judgment
debtor which is not justified. It has further been observed that till date no
document has been presented to show that any proceedings have been
initiated by the judgment debtor before the this Court or Apex Court. On
such premises, the application has been rejected.
14. In the present case, the judgment and decree was passed on
NEUTRAL CITATION NO. 2026:MPHC-IND:162
5 MP-7102-2025
03.06.2004 and the execution case was instituted in the year 2007, however,
the same has not been executed till date on some pretext or the other. Since
this Court has dismissed the appeal, valuable right has been created in favour
of the original plaintiffs and the same cannot be grabbed unless and until the
same has been stayed by the Apex Court. Only on the pretext that the
judgment debtor has to approach the Apex Court against the order passed in
second appeal, the stay of the execution proceedings cannot be granted or if
it happens like this, the same will cause prejudice to the original plaintiffs.
Hence, in the considered opinion of this Court, there is no error apparent on
the face of the impugned order which warrants any interference.
15. In view of the above, Miscellaneous Petition stands dismissed.
(ALOK AWASTHI)
JUDGE
Ravi
