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2019 DIGILAW 139 (MP)

Sajjan Singh v. Kantabai @ Baban Bai

2019-02-12

VANDANA KASREKAR

body2019
ORDER : 1. The petitioner has filed this present petition challenging the order dated 19.04.2018 passed by learned II Civil Judge, Class-I, Dhar in Execution Case No.17/2017 whereby the learned Judge has dismissed the application filed by the petitioner regarding dismissal of the execution proceedings on the ground of mis-joinder and non-joinder of parties in the execution including the judgment debtor. 2. The facts of the case in brief are that on 15.12.1997 the respondent no.1 and Late Mrs. Ghisi Bai Wd/o Ramsingh filed a Civil Suit No.93-A/2000 for partition of the lands bearing Survey No.88/1,138/2,138/3/2,248,284/2 and 243 ad-measuring the total area of 4.144 Hectare. The suit was filed for equal partition of the said property among the plaintiffs and the defendants. The preliminary decree was passed deciding the shares of the parties. The petitioner being one of the 7 defendants whereas the present respondent being one of the 2 plaintiffs had their shares decided. Ghisibai and Umarobai were provided a share of 1/16th whereas the petitioner and respondent along with Ramkanya, Leelabai, Ahilyabai, Bholibai were awarded share of 1/8th. Being aggrieved by the said impugned judgment and preliminary decree the petitioner preferred an appeal. The learned appellate Court vide judgment and decree partially allowed the appeal whereby the shares of the parties defined by the learned trial Court was modified. The said judgment and decree was challenged by the petitioner in S.A.No.450/2005. The said appeal was dismissed by this Court. 3. In the meanwhile, the respondent no.1 and Ghisibai and plaintiff no.1 in the initial suit for partition initiated proceedings before the Tehsildar for partition and possession as per the decree passed by the first appellate Court. The same was decided vide order dated 29.04.2010 against which appeal was filed by the petitioner before the Collector and the same was also dismissed vide order dated 30.06.2011. Thereafter, respondent no.1 initiated execution proceedings before the learned Ist Civil Judge, Class-I, Dhar for the execution of preliminary decree. In the said execution case only the respondent no.2 and respective respondent no.3 were made parties by the respondent no.1. Neither the petitioner nor any judgment debtor or even Collector Dhar were made party to the execution of preliminary decree. The petitioner filed a stay application for restraining the compliance of the possession warrant. In the said execution case only the respondent no.2 and respective respondent no.3 were made parties by the respondent no.1. Neither the petitioner nor any judgment debtor or even Collector Dhar were made party to the execution of preliminary decree. The petitioner filed a stay application for restraining the compliance of the possession warrant. The objection was raised in the said applications so as to quash the said execution on the ground that it is initiated for the execution on the ground that it is initiated for the execution of the preliminary decree which is not permissible. The execution Court rejected both the applications of the petitioner. 4. Against the said order the petitioner preferred a W.P.No.9204/2014. The said writ petition was decided vide order dated 07.05.2015 and this Court directed the trial Court to decide the petitioner's objection in respect of executability of the preliminary decree. The respondent no.1 preferred a review petition against the said order which was also dismissed. The petitioner thereafter raised an objection before the executing Court and also filed application under Section 151 of CPC for non-joinder and mis-joinder of parties to the execution proceedings. The learned Judge vide order dated 19.04.2018 rejected the said application of the petitioner. Being aggrieved by the said order the present petition has been filed. 5. Learned senior counsel for the petitioner submits that the impugned order passed by the learned Court below is illegal, unjustified and erroneous. He further submits that the Court below has also erred in giving its finding on the non-joinder and mis-joinder of parties to the decree. The respondent no.2 and respondent no.3 were only impleaded parties to the execution proceeding which were not party to the initial suit against which the decree was passed. The respondent did not make any of the judgment debtor party to the execution proceedings which shows the mala fide intention of the respondent no.1 in the case. He also submits that the preliminary decree was passed to decide the share of all the parties namely Ghisibai Umarobai, Ramkanya, Leelabai, Ahilyabai, Bholibai and not just of the respondent no.1 but without giving notice to any of the parties or making Collector, Dhar a party in the case, the respondent no.1 moved for execution of the said decree. He also submits that the preliminary decree was passed to decide the share of all the parties namely Ghisibai Umarobai, Ramkanya, Leelabai, Ahilyabai, Bholibai and not just of the respondent no.1 but without giving notice to any of the parties or making Collector, Dhar a party in the case, the respondent no.1 moved for execution of the said decree. Thus, the execution proceedings for non-joinder of parties deserves to be dismissed and therefore this petition be allowed and the impugned order passed by the learned trial Court be set aside. 6. Learned counsel for the respondent supports the order passed by the learned trial Court. 7. Heard learned counsel for the parties at length and perued the order. 8. In the present case, respondent no.1 and Late Ghisibai filed suit for partition of the land in equal share amongst the plaintiffs and the defendants. The trial Court has passed a preliminary decree thereby deciding the share of the parties as 1/16th and 1/8th. An appeal was preferred against the judgment and decree. The said appeal was partially allowed and share of the parties defined by the trial Court was modified. The said judgment and decree was challenged before this Court in second appeal which was also dismissed. Thereafter respondent no.1 alone initiated execution proceedings before the learned Civil Judge, Class-I, Dhar for the execution of the preliminary decree. In the said execution proceedings he impleaded only respondent nos.2 and 3 as party. None for the parties to the suit were impleaded as party in the execution proceedings. The petitioner therefore filed an application under Section 151 CPC for dismissal of the execution proceedings on the basis of nonjoinder and mis-joinder of the parties which was dismissed by the trial Court. Hence, this petition. 9. From the perusal of the record it reveals that in the suit itself filed by respondent no.1, neither the respondent no.2 nor respondent no.3 were impleaded as party. Respondent no.1 has filed execution proceedings, however, neither the petitioner nor any judgment debtor or even Collector Dhar were made party to the execution proceedings. Therefore, the execution proceedings suffers from non-joinder and mis-joinder of the parties. Consequently, the present petition is allowed. The impugned order is set aside.