Madhya Pradesh High Court
Smt. Jasoda Bai vs Satyanarayan on 7 March, 2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. MP. No.979/2017 & MP. No.980/2017
Parties Name Smt. Jasoda Bai & Others
Vs.
Satyanarayan & Another
Date of Judgment 07/03/18
Bench Constituted Single Bench
Judgment delivered by Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for parties Petitioners: Shri Hemant Kumar
Namdeo, Advocate
Respondent No.1: Shri Ashish Shroti,
Advocate Respondent No.2: Ms. Garima Tiwari, Advocate Law laid down -
Significant paragraph -
numbers
(Order)
07.03.2018
These petitions filed under Article 227 of the Constitution of India take exception to the orders whereby the applications filed by the petitioners/objectors under Order 21 Rule 26 r/w 151 of CPC is rejected by the Court below.
2. The facts are taken from MP. No.980/17.
3. Admittedly, the civil suit for eviction was decreed on 27-11-2013. The regular Civil Appeal No.14-A/13 filed by the other side was
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MP. No. 979/17 & 980/17 dismissed by the Appellate Court on 16-09-2015. In the Second Appeal No.1133/15, the judgment dated 16-09-2015 got a stamp of approval. The High Court by judgment dated 29-11-2016 directed to give vacant possession of the suit property to the decree holder within 90 days.
4. The objector filed objection by contending that he is running business on suit property for the last 40 years. He was not impleaded as a party purposely. He has acquired right and title based on adverse possession. The municipality was also not impleaded as a party respondent. The judgment and decree was obtained by collusion.
5. Shri Hemant Namdeo, learned counsel for the petitioner submits that the Court below has erred in rejecting the application preferred under Order 21 Rule 26 of CPC. In support of his contention, he placed reliance on additional documents filed with I.A. No.2378/18 and judgments reported in AIR 1998 Delhi Page 2 (Indira Transport vs. Rattan Lal) and (2002) 7 SCC 50 (Tanzeem-e-Sufia vs. Bibi Haliman & others). He urged that Court below should have decided the question of title of present petitioner.
6. Per contra, Shri Ashish Shroti with Ms. Garima Tiwari, learned counsel for the respondents supported the impugned order. They contended that the objections of present petitioners were not maintainable. The judgment debtors/tenants were real uncle of the present petitioners. The allegation of collusion is therefore cannot be accepted. The tenants deposited rent during the pendency of suit and never objected about landlord tenant relation.
7. No other point is pressed by the parties.
8. I have heard the parties at length and perused the record.
9. Before dealing with rival contentions, it is apposite to refer Order 21
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MP. No. 979/17 & 980/17 Rule 26 of CPC which reads as under:-
"26. When court may stay execution.-(1) The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for which an Order to stay execution, or for any other order relating to the decree or execution which might have been made by such court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto, (2) Where the property or person of the judgment debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application.
(3) Power to require security from, or Impose conditions upon, judgment debtor:--Before making an order to stay execution or for the restitution of property or the discharge of the judgment debtor, the court shall require such security from, or impose such conditions upon, the judgment debtor as it thinks fit."
(Emphasis supplied)
10. A bare perusal of this provision makes it clear that the Court may stay execution upon sufficient cause being shown to enable the judgment debtor to apply to the Court in the manner provided in Clause (1) of Rule 26 of Order 21. Pertinently, Clause (1) & (2) of Rule 26 only permits the judgment debtor to invoke this provision. I find substantial force in the argument of respondents that Order 21 Rule 26 cannot be pressed into service by the objector. [See AIR 1964 MP 226 (Allahabad Bank Ltd. vs. Chaitram Choudhari) and 2001 SCC Online AP 1294 (T. Nekkanti Gopala Krishna Murthy vs. Darianka Ramalakshmi)] In the case of Tanzeem-e-Sufia (supra), the Apex Court considered the impact of Order 21 Rule 97, 99 and 101. The instant application was not filed under these provisions. Thus, the said judgment cannot be pressed into service in the
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MP. No. 979/17 & 980/17 present case. The same is the case with Indira Transport (supra). Additional documents on which reliance is placed were not part of the application under Order 21 Rule 26 of CPC.
11. The Court below passed a detailed order which cannot be said to be without jurisdiction. The Court below has taken a plausible view, which does not warrant any interference by this Court. Interference under Article 227 of the Constitution can be made if order suffers from any jurisdictional error, palpable perversity or manifest procedural impropriety. In absence of any such ingredient, interference is declined.
12. The petitions are dismissed. No cost.
(SUJOY PAUL) JUDGE mohsin Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2018.03.08 14:36:23 +05'30'