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2014 DIGILAW 1518 (MP)

Pushpa Bai v. Shiv Kumar

2014-11-24

K.K.TRIVEDI

body2014
JUDGMENT : K.K. Trivedi, J. With the consent of learned counsel for the parties, the petition is heard finally. 1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 10.01.2014 and 10.02.2014 passed in Execution Case No. 382-A/2004, by the 1st Civil judge, Class-II, Harda. It is contended by learned counsel for the petitioner that a civil suit was filed by the respondent No. 1 seeking decree of possession against the petitioner and others and the said suit has been decreed ex parte against the petitioner. Since the ex parte judgment and decree was passed without the notice of the suit, fresh suit has been filed by the petitioner challenging the validity of judgment and decree granted in the suit of respondent No. 1. The said suit has been dismissed and an appeal against such judgment and decree is filed by the petitioner which is pending. During pendency of the said appeal, since the execution proceedings were initiated by respondent No. 1, an application under Order 21 Rule 29 of CPC was filed by the petitioner before the Executing Court. The said application was rejected vide order dated 13.11.2013, therefore, the writ petition was required to be filed before this Court being W.P. No. 21009/2013. The said writ petition was disposed of vide order dated 11.12.2013 granting liberty to the petitioner to make application afresh with requisite documents before the Executing Court for grant of stay. 2. The application under Order 47 Rule 1 read with Section 151 of CPC was filed by the petitioner along with relevant documents before the Executing Court, which application has been rejected on 10.01.2014. As a consequence, the judgment and decree is said to be executed and the proceedings of execution have been closed vide order dated 10.02.2014, therefore, this writ petition is required to be filed. 3. Upon service of notice of the writ petition, the respondent No. 1 has appeared through counsel and it is contended by learned counsel for the respondent No. 1 that a complete fraud has been played by the petitioner as the suit has rightly been decreed. 3. Upon service of notice of the writ petition, the respondent No. 1 has appeared through counsel and it is contended by learned counsel for the respondent No. 1 that a complete fraud has been played by the petitioner as the suit has rightly been decreed. Since the execution proceedings have been completed, only the relief was granted to cut the standing crops but the petitioner is obstructing the possession of respondent No. 1, therefore, the application has rightly been rejected by the Court below and, hence the writ petition is liable to be dismissed. 4. It is clear that the Order 21 Rule 29 of CPC would be applicable only if the execution proceedings in respect of the judgment and decree which is sought to be challenged in the independent suit, are pending. If the execution proceedings are completed and after recording satisfaction of the decree, the same are closed by the Executing Court, the order of stay under Order 21 Rule 29 of CPC in respect of such execution proceedings cannot be issued. Therefore, virtually now, it will not be possible for the Executing Court to stay the proceedings which have already been closed by it and, therefore, any order in that respect is not required to be passed by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. 5. Since the factum of possession is disputed by the petitioner and it is contended that the petitioner is still in possession of the land in suit and only paper possession has been delivered to the respondent No. 1, it would be open to the petitioner to approach the Court where the appeal filed by the petitioner is pending, by making appropriate application under Order 39 Rule 1 and 2 of CPC. In case the petitioner is in possession, she can establish such a fact before the aforesaid Court and obtain an interim injunction for protection of possession. However, nothing can be done in the present writ petition as the execution proceedings initiated on the ex parte judgment and decree obtained by respondent No. 1 have been finally closed and disposed of. 6. In view of the aforesaid, challenge to the order impugned cannot be sustained. The writ petition is dismissed against the said order. However, nothing can be done in the present writ petition as the execution proceedings initiated on the ex parte judgment and decree obtained by respondent No. 1 have been finally closed and disposed of. 6. In view of the aforesaid, challenge to the order impugned cannot be sustained. The writ petition is dismissed against the said order. However, it is observed that the order passed in the Execution proceeding would not come in the way of the petitioner in making the application under Order 39 Rule 1and 2 of CPC before the Appellate Court as indicated herein above.