Madhya Pradesh High Court
Hiralal Yadav vs Hamid Husain on 15 June, 2021
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
1 FA-360-2021
The High Court Of Madhya Pradesh
FA-360-2021
(HIRALAL YADAV Vs HAMID HUSAIN AND OTHERS)
2
Jabalpur, Dated : 15-06-2021
Heard through Video Conferencing.
Shri R.P.Khare, learned counsel for the appellant.
Shri Sanjay Agrawal, learned counsel for respondent No.1.
None for respondent No.2 as service of notice on the said respondent is awaited.
Respondent No.2 is a judgment debtor.
Counsel for the parties are heard on I.A.No.2935/2021, which is an application for staying the order of the Executing Court as also the effect, operation and execution of the judgment and decree dated 03/11/2020 passed in the C.S.No.09/2020.
The submission of learned counsel for the appellant is that the appellant had purchased the property in dispute from Shyama Bai Widow of Govind Prasad Yadav vide sale deed dated 15/09/2005 whereas the claim of the respondent is based upon the alleged Will which was executed by Govind Prasad in favour of Tulsiram who in turn had sold the property to one Vijay Chaturvedi and the respondent No.1 had acquired it from Vijay Chaturvedi.
Learned counsel for the appellant has further submitted that the appellant has filed the C.S.No.2-A/2011 in the Court of District Judge, Jabalpur, inter-alia against Vijay Chaturvedi in which the trial Court has passed the order of temporary injunction dated 09/08/2011 restraining the defendant therein from alienating the suit property or disturbing the possession of the appellant.
The submission of learned counsel for the respondent is that the suit filed by Vijay Chaturvedi being C.S.No.75-A/2008 as against Shyama Bai and the present appellant has already been decreed on 28/01/2015 and the Signature Not Verified SAN said decree has become final, therefore, nothing survives now in favour of the Digitally signed by MANJU CHOUKSEY Date: 2021.06.21 11:36:56 IST 2 FA-360-2021 present appellant.
Having heard the learned counsel for the parties and on perusal of the record, we have noticed that the consent decree dated 03/11/2020 passed in C.S.No.09/2020 is sought to be executed and the order of Executing Court is under challenge. The appellant is not a party to the said consent decree.
The counsel for the appellant has also pointed out that against the judgment and decree dated 28/10/2015 passed in C.S.No.75-A/2008 an appeal has already been preferred which is pending. Hence, it cannot be said that the said decree has attained finality. In a different suit being C.S.No.2- A/2011 which is filed by the appellant as against Vijay Kumar Chaturvedi, predecessor-in-title of respondent No.1, the trial Court has already passed the order of temporary injunction on 09/08/2011 restraining the defendants therein from dispossessing the appellant. Nothing has been pointed out to show that the said order of temporary injunction has been disturbed by any higher Court.
In these circumstances, we are of the opinion that a case for grant of interim relief is made out. Accordingly, the impugned order dated 24/03/2021 is stayed and the parties are directed to maintain status-quo in respect of possession of the suit property existing as on today.
List after four weeks along with the report relating to service of notice on respondent No.2.
(PRAKASH SHRIVASTAVA) (VIRENDER SINGH)
JUDGE JUDGE
manju
Signature Not Verified
SAN
Digitally signed by MANJU CHOUKSEY
Date: 2021.06.21 11:36:56 IST