Madhya Pradesh High Court
Vijay Sood vs Kanak Devi on 16 September, 2015
CR.69/2015 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Civil Revision No. 69/2015
Vijay Sood
Vs.
Kanak Devi
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Shri N.K.Gupta, Sr. Advocate with Shri Sanjay Sharma,
Advocate for the petitioner.
Shri V.K.Bharadwaj, Sr. Advocate with Shri Anvesh Jain,
for the respondent No.1.
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ORDER
( 16/09/2015 ) This Civil Revision calls in question the legality, validity and propriety of the order dated 24.8.2015, whereby the court below rejected the objection of the petitioner/judgment-debtor.
2. The admitted facts between the parties are that they are party to Civil Suit No. 200A/2014, which was decided by judgment and decree dated 27.2.2015. The petitioner by filing said application dated 23.6.2015, contended that the decree dated 27.2.2015 is a preliminary decree. Hence, it cannot be put to execution. By taking this Court to the decree, it is urged by Shri N.K.Gupta, learned senior counsel that the decree is required to be implemented by taking necessary steps, which are mentioned in paras 2 and 3 of the decree. Thereafter only it will achieve the finality. In addition, it is urged that the decree holder has filed an application under Order 26 Rules 13 and 14 CPC, which is pending. The said application itself shows that final decree has not been passed.
CR.69/2015 23. Per Contra, Shri V.K.Bharadwaj, learned senior counsel relied on the judgment dated 27.2.2015 and urged that the decree dated 27.2.2015 must be treated as final decree. He relied on an earlier adjudication by this Court in First Appeal No. 6/1993 (Jainarayan vs. Satyanarain). He relied on 1996 JLJ 357 (Hansraj v. Gomti and others); AIR 1942 Oudh 1 (Lal Bhagwat Singh vs. Hari Kishen Das); AIR 1952 Travancore-Cochin 428 (Madhava Menon vs. Esthapanose and another); and AIR 1999 Delhi 327 (Bimal Krishna Khanna v. Kamal Nain Khanna and others), in support of his contention that the decree dated 27.2.2015 must be treated as final decree and not preliminary one.
4. The parties are at loggerheads on another aspect. Shri Gupta urged that all the persons, who were defendants/party in Civil Suit No.200A/2014 were not impleaded by the decree holder in the execution proceedings. Reliance is placed on the cover page of the execution application. Shri Bharadwaj urged that the opening sentence of order dated 24.8.2015 shows that the notices were issued to all judgment-debtors and out of them No.3,4 and 6 are already ex parte.
5. I have heard the parties and perused the record.
6. This is trite law that executing court cannot travel behind and beyond the decree. In the present case, the court below has rejected the objection of the petitioner. It is further held that a plain reading of judgment dated 27.2.2015 shows that rights and obligations of the parties were determined. Hence, it is not a preliminary decree but a final decree.
7. In the opinion of this Court, para 39 of the judgment of the court below is important. In pursuant to this direction, the decree was drawn. It reads as under:-
**39- rnuqlkj izkjafHkd vkKfIr cuk;h tk;sA** (Emphasis Supplied) This para in no uncertain terms makes it clear that CR.69/2015 3 the court directed that a preliminary decree be drawn. However, in the impugned order the court below has not considered directions contained in para 39. A very crucial finding of judgment (para 39 aforesaid) has escaped notice of the court below. The court below was legally duty bound to examine the judgment in its entirety. Since the court below has failed to undertake aforesaid exercise, in my view, the order suffers from procedural impropriety and palpable perversity.
8. At this stage, I do not propose to deal with rival contentions of the parties as to whether the decree in question is a 'preliminary decree' or a 'final decree'. Since the order of court below suffers from aforesaid infirmities, I deem it proper to set aside the order and direct the court below to rehear the parties on the said objection and decide it afresh. It will be open for the parties to address on all the aspects which were dealt with by the court below in the earlier order dated 24.8.2015.
9. As analyzed above, the order dated 24.8.2015 cannot sustain judicial scrutiny. Resultantly, the said order is set aside. The court below is directed to rehear the parties on the objection dated 23.6.2015 and decide it in accordance with law. It is made clear that this Court has not expressed any view on merits.
10. Petition is allowed to the extent indicated above. No cost.
(Sujoy Paul)
(yog) Judge