Govind Singh Jaat Vs. the State of Madhya Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/1050931
CourtMadhya Pradesh High Court
Decided OnNov-07-2012
AppellantGovind Singh Jaat
RespondentThe State of Madhya Pradesh
Excerpt:
writ petition no.13418/11. 7.11.2012 shri r.k.verma, learned counsel for the petitioner. shri rajendra tiwari, learned senior advocate assisted by shri ravi ranjan shrivastava, counsel for the respondent no.1-decree holder. heard. the petitioner-one of the judgment debtors.has filed this petition under article 227 of the constitution of india for quashment of the order dated 14.2.2011 (annexure-p-7) passed by xvth additional district judge jabalpur, in execution case no.25-a/06, whereby allowing the prayer of the respondent no.1/decree holder, the petitioner has been directed to deposit the sum of money part of the decree under execution. petitioner’s counsel after taking me through the papers placed on the record along with the impugned order said that, the decree under execution was passed by the trial court as preliminary decree because the matter was related to immovable property. subsequent to it, on challenging such decree before this court by way of firs.appeal no.560/07, vide order dated 28.9.2007 the hon’ble division bench of this court instead to stay the operation of the decree, has observed that meanwhile, the proceedings of decree may continue, however, final decree may not be not passed unless otherwise ordered by this court. it is a matter of legal position that the preliminary decree is normally passed with respect of the immovable property and some time with respect of the mesne profit or mesne related to such immovable property, but the same is not passed with respect of the money or immovable property. in the light of such legal position on asking the petitioner’s counsel that what error has been committed by the executing court in directing the petitioner to comply with the money part of the decree under execution on which, he said that the respondent no.1 did not have authority to raise this question before the executing court or to make any prayer for appropriate direction to the petitioner to deposit the money part of the impugned decree when the firs.appeal filed by the petitioner is pending before this court. the respondent no.1 could have come directly in the aforesaid firs.appeal for the aforesaid direction, therefore, in such circumstances, the direction of the trial court at the request of the respondent no.1 is not sustainable under the law. again on asking the petitioner’s counsel that when the money part of the decree was not stayed by this court in the firs.appeal, then what error has been committed by such court and if the petitioner has any grievance against such direction, then he has/had a remedy to file the appropriate application in such firs.appeal either for grant of stay with respect of the money part of the impugned decree or for appropriate direction to the executing court in this regard. in pendency of said appeal such question could not be considered by this court in the present writ petition on which, instead to argue further petitioner’s counsel seeks permission to withdraw this petition with liberty to file the appropriate application for grant of stay the money part of impugned decree or for appropriate direction in this regard to the aforesaid executing court by mentioning all the grounds and objections stated in this petition. the other side did not have any objection in disposing of this petition on the aforesaid limited prayer of the petitioner’s counsel. in view of the aforesaid, without expressing any opinion on merits of the matter, this petition is hereby dismissed as withdrawn and not pressed with liberty aforesaid as prayed by the petitioner’s counsel. certified copy as per rules. (u.c.maheshwari) judge pb
Judgment:

Writ Petition No.13418/11.

7.11.2012 Shri R.K.Verma, learned counsel for the petitioner.

Shri Rajendra Tiwari, learned Senior Advocate assisted by Shri Ravi Ranjan Shrivastava, counsel for the respondent no.1-decree holder.

Heard.

The petitioner-one of the judgment debtORS.has filed this petition under Article 227 of the Constitution of India for quashment of the order dated 14.2.2011 (Annexure-P-7) passed by XVth Additional District Judge Jabalpur, in Execution Case No.25-A/06, whereby allowing the prayer of the respondent no.1/decree holder, the petitioner has been directed to deposit the sum of money part of the decree under execution.

Petitioner’s counsel after taking me through the papers placed on the record along with the impugned order said that, the decree under execution was passed by the trial Court as preliminary decree because the matter was related to immovable property.

Subsequent to it, on challenging such decree before this Court by way of FiRs.Appeal No.560/07, vide order dated 28.9.2007 the Hon’ble Division Bench of this Court instead to stay the operation of the decree, has observed that meanwhile, the proceedings of decree may continue, however, final decree may not be not passed unless otherwise ordered by this Court.

It is a matter of legal position that the preliminary decree is normally passed with respect of the immovable property and some time with respect of the mesne profit or mesne related to such immovable property, but the same is not passed with respect of the money or immovable property.

In the light of such legal position on asking the petitioner’s counsel that what error has been committed by the Executing Court in directing the petitioner to comply with the money part of the decree under execution on which, he said that the respondent no.1 did not have authority to raise this question before the Executing Court or to make any prayer for appropriate direction to the petitioner to deposit the money part of the impugned decree when the FiRs.Appeal filed by the petitioner is pending before this Court.

The respondent no.1 could have come directly in the aforesaid FiRs.Appeal for the aforesaid direction, therefore, in such circumstances, the direction of the trial Court at the request of the respondent no.1 is not sustainable under the law.

Again on asking the petitioner’s counsel that when the money part of the decree was not stayed by this Court in the FiRs.Appeal, then what error has been committed by such Court and if the petitioner has any grievance against such direction, then he has/had a remedy to file the appropriate application in such FiRs.Appeal either for grant of stay with respect of the money part of the impugned decree or for appropriate direction to the Executing Court in this regard.

In pendency of said appeal such question could not be considered by this Court in the present writ petition on which, instead to argue further petitioner’s counsel seeks permission to withdraw this petition with liberty to file the appropriate application for grant of stay the money part of impugned decree or for appropriate direction in this regard to the aforesaid Executing Court by mentioning all the grounds and objections stated in this petition.

The other side did not have any objection in disposing of this petition on the aforesaid limited prayer of the petitioner’s counsel.

In view of the aforesaid, without expressing any opinion on merits of the matter, this petition is hereby dismissed as withdrawn and not pressed with liberty aforesaid as prayed by the petitioner’s counsel.

Certified copy as per rules.

(U.C.Maheshwari) Judge Pb