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Madhya Pradesh High Court · body

2013 DIGILAW 1367 (MP)

Arun Maity v. Gulab Chourasiya

2013-11-12

R.S.Jha

body2013
ORDER 1. The applicant has filed this revision being aggrieved by the rejection of his application for review by the Executing Court by order dated 8.10.2013 passed in M.J.C No.560/2013. 2. The brief facts, leading to the filing of the present revision, are that the respondent/decree holder filed a suit for eviction and recovery of arrears of rent against the applicant which was decreed by judgment and decree dated 10.9.2012. The applicant, being aggrieved, has filed a first appeal which was registered as F.A No.1017/2012 against the said judgment and decree which is pending before this Court. However, this Court has refused to stay the execution of the decree and has dismissed the interim application filed by the applicant. 3. The respondent had filed execution proceedings against the applicant in which orders of execution of the decree towards recovery of arrears of rent amounting to Rs.17,26,000/- has been ordered by the Executing Court by order dated 24.9.2013. 4. The applicant had thereafter moved an application for review of the order passed by the Executing Court contending that the applicant had already deposited a sum of Rs.11,42,599/- towards arrears of rent during the pendency of the suit itself and thereafter and, therefore, the aforesaid amount already paid by the applicant be reduced and deducted from the amount sought to be recovered from him and he be granted easy installment of Rs.25,000/- per month to deposit the remaining decretal amount. The application filed by the applicant for review has been rejected by the impugned order dated 8.10.2013 on the ground that the applicant has failed to file documents in support of his submission to the effect that he had already deposited more than Rs.11 lacs and that there is no reason to grant the facility to repay the amount in installments. 5. The applicant, being aggrieved, has filed the present petition stating that the receipts of deposit of the amount in the Court during the pendency of the suit and thereafter are already on record of the civil suit and that the Court without verifying the aforesaid aspect has rejected the claim which, if permitted to stand, would result in recovery of double the decretal amount from the applicant which is not in accordance with law. It is submitted that the Executing Court should have verified from the record or given the applicant an opportunity to point out the receipts from the record before passing the impugned order and in such circumstances as the impugned order suffers from total non-application of mind, it be set aside. The learned counsel for the applicant further submits that the applicant should be granted liberty to deposit the remaining amount in easy installments which aspect has also not been considered by the Executing Court by applying its mind to the same and in such circumstances the impugned order be set aside. 6. Having heard the learned counsel for the applicant, I am of the considered opinion that in case the applicant has already deposited a sum of Rs. 11,42,599/- and the receipts of the same are on record, the Executing Court should have verified the same from the record and failure on its part to do so may and would result in injustice to the applicant concerned. 7. Looking to the aforesaid aspect, the impugned order dated 8.10.2013 passed by the Executing Court in MJC No. 560/2013 is set aside and the matter is sent back to the Executing Court for re-examining the aforesaid issue subject to the condition that the applicant deposits a sum of Rs. 2,00,000/- (Rs. Two lacs) within a month from today and thereafter continues to deposit a further sum of Rs. 1,00,000/- per month towards satisfaction of the amount remaining, after deducting Rs. 11,42,599/-. 8. In case the applicant deposits the aforesaid amount, the execution proceedings against the applicant shall remain stayed till the Executing Court verifies the assertion of the applicant from the record regarding payment of Rs. 11,42,599/- during the pendency of the suit and thereafter. It is made clear that in case the Executing Court finds that the applicant has not deposited the amount of Rs. 11,42,599/-, the interim arrangement made by this Court in the preceding paragraphs shall come to an end and the Executing Court would be at liberty to take steps forthwith for recovery of the entire amount from the applicant. 9. With the aforesaid direction, the revision petition filed by the applicant stands allowed and disposed of. M.S. Bhatti for applicant.