Madhya Pradesh High Court
Smt. Anees Bano (Dead) Thr. Lrs. Sheikh ... vs Nageena Masjid Trust Committee on 28 January, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:4529
1 FA-498-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 28th OF JANUARY, 2025
FIRST APPEAL No. 498 of 2015
SMT. ANEES BANO (DEAD) THR. LRS. SHEIKH SALEEM ALIAS
SAJJU KHAN AND OTHERS
Versus
NAGEENA MASJID TRUST COMMITTEE AND OTHERS
Appearance:
Shri Saket Malik - Advocate for the appellants.
Shri Ishteyaq Hussain - Advocate for the respondent No.1.
Shri Aditya Khare - Advocate for the intervener.
ORDER
The appellant herein was the objector in the execution case. Civil Appeal No. 56A/05 filed by the respondent No.1 herein against Sheikh Khalil (husband of appellant/ plaintiff No.1) was allowed whereby the suit for eviction was decreed vide order dated 29.10.2005. On 13.01.2006 execution proceeding was filed by respondent No.1 before the Executing Court.. On 14.05.2007 appellant/ plaintiff filed a suit for declaring the judgment and decree dated 29.10.2005 passed in Civil Appeal No. 56- A/2005 to be not binding on plaintiffs and for injunction restraining respondent No.1 to take possession of the suit property in execution proceedings. On 10.08.2007 appellant/ plaintiff filed an objection under Order 21 Rule 97 of C.P.C. before the Executing Court. That objection was rejected. On 6.4.2015 respondent No.1 filed an application under Order 7 Signature Not Verified Signed by: VIKRAM SINGH Signing time: 30-01-2025 18:54:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:4529 2 FA-498-2015 Rule 11 of C.P.C. raising an objection regarding maintainability of suit in view of provisions contained in Order 21 Rule 101 C.P.C. On 16.05.2015 learned trial Court vide impugned judgment and decree dated 16.05.2015 allowed the application filed by the respondent No.1 under Order 7 Rule 11 of C.P.C. and dismissed the suit filed by the appellants/ plaintiffs as not maintainable, therefore, this appeal.
Earlier S.P.C. was issued to appellant. Objection was raised by the respondent on the maintainability by filing I.A. No. 3971 of 2016. Reply was filed vide document No. 4167 of 2024 on 3.5.2024.
Heard the learned counsel for the rival parties on objection and reply. Learned counsel for the respondent refers to the judgment passed by the Hon'ble Supreme Court in the case of Vanikyankandy Bhaskaran Vs. Mooliyil Padinhjarekandy Sheela reported in (2008) 10 SCC 491. Attention of this Court is invited to the following paragraphs :-
"11. Since we shall be considering the effect of the aforesaid Rule, the same is set out hereinbelow:
"104. Order under Rule 101 or Rule 103 to be subject to the result of pending suit.--Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property."
13. Mr Menon submitted that in order to curtail the delay in executing the decree for possession of immovable property, the amended Rules were brought on the statute book to enable the Signature Not Verified Signed by: VIKRAM SINGH Signing time: 30-01-2025 18:54:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:4529 3 FA-498-2015 executing court itself to decide claims of title which might be raised in execution proceedings without filing of a separate suit for the said purpose.
15. According to Mr Menon, although the execution proceedings were commenced on 3-11-2004, and the suit for specific performance was filed by the appellant on 27-8-2005, the actual order was passed on the application under Rule 97 by the executing court on 19-12- 2005, after the suit had been filed by the appellant. In other words, according to Mr Menon, the suit filed by the appellant was pending on the date when the order under Rule 97 and Rule 98 was made and would, therefore, be subject to the provisions of Rule 104 and would have to await the outcome of the suit for specific performance filed by the appellant. Mr Menon urged that the High Court had erred in relying on the provisions of Rule 2 of Order 21 of the Code in setting aside the order of injunction passed by the learned Subordinate Judge on the application for injunction filed by the appellant in OS No. 181 of 2005.
16. Appearing for the respondent, Mr Viswanathan, on the other hand, submitted that the submission regarding the applicability of Rule 104 of Order 21 of the Code of Civil Procedure to the facts of this case was wholly misconceived since the execution proceedings had been commenced long before the appellant's suit for specific performance was filed. While the respondent's suit for recovery of possession was decreed in 1990, the execution proceedings for executing the decree was commenced on 3-11-2004, and the appellant filed his suit for specific performance about ten months later on 27-8-2005.
17. Mr Viswanathan submitted that since the eviction proceedings against the appellant's wife had reached its final stages, the appellant raised a new claim based on an unregistered document to stall the execution of the decree for possession made as far back as in 1990.
18. The submissions made on behalf of the appellant regarding the applicability of Rule 104 of Order 21 of the Code have substance and merit consideration in an appropriate case, but they do not justify interference with the order of the High Court in the facts of this case. The suit filed by the appellant for specific performance of contract was considerably later in point of time than the commencement of the Signature Not Verified Signed by: VIKRAM SINGH Signing time: 30-01-2025 18:54:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:4529 4 FA-498-2015 execution proceedings and, in any event, the language of Rule 104 is clear and unambiguous that any order made under Rule 101 or Rule 103 would be subject to the result of a suit pending on the date of commencement of the proceeding in which orders were made under Rule 101 or 103. Since the appellant's suit was filed long after the commencement of the execution proceedings, the provisions of Rule 104 of Order 21 of the Code will not apply to this case. "
Learned counsel for the appellants very fairly submitted that this appeal does not stand in the light of the judgment passed in the case of Vanikyankandy Bhaskaran (Supra) as the suit was filed by the plaintiffs/ appellants herein after the execution proceedings were started. If the suit was filed earlier then the execution proceedings could have been stayed subject to the decision of the suit but not vice-versa.
In the light of the judgment passed in the case of Vanikyankandy Bhaskaran (Supra) and keeping in view the provisions of Order 21 Rule 101 to 104 of the C.P.C., this First Appeal is not maintainable. This view is also fortified by the judgment of this Court in the case of Gajendra Nath Vs. Shakil Ahmad Khan alias Ajij Mohd. Khan and another reported in 2003(2) M.P.H.T. 506 . Accordingly, this appeal being not maintainable is hereby dismissed.
(AVANINDRA KUMAR SINGH) JUDGE VSG Signature Not Verified Signed by: VIKRAM SINGH Signing time: 30-01-2025 18:54:31