1 M.P.No.

1860/2023

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 2nd OF MAY, 2023
MISC. PETITION No. 1860 of 2023

BETWEEN:-

SMT. RANJI VANDANA RAKESIA W/O SANTOSH

RAKESIA, AGED ABOUT 35 YEARS,
OCCUPATION: HOUSE WIFE R/O IN FRONT OF
AADIVASI MUSEUM CHHINDWARA TEHSIL AND
DISTRICT CHHINDWARA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI D.R. VISHWAKARMA- ADVOCATE FOR THE PETITIONER)

AND

1. JAMUNA BAI W/O VYAS NARAYAN, AGED

ABOUT 62 YEARS, R/O SHVAM SUDERM
COLONY, CHHINDWARA (MADHYA
PRADESH)

2. RAJESH SAHU S/O HARIPRASAD SAHU,

AGED ABOUT 45 YEARS, R/O VILLAGE
MOHGAD, TEHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)

3. SMT MAMTA SAHU W/O RAJESH SAHU,

AGED ABOUT 45 YEARS, R/O VILLAGE
MOHGAD, TEHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)

4. RAMKUMAR S/O LATE DHRUV LAL, AGED

ABOUT 48 YEARS, R/O PEEPER DHAHI,
TEHSIL AND DISTRICT CHHINDWARA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ASHOK KUMAR CHAKRAWARTI – ADVOCATE FOR THE RESPONDENTS
 2 M.P.No.1860/2023

NO.2 AND 3)

This petition coming on for hearing this day, the court passed the
following:
ORDER

This petition under Article 227 of the Constitution of India has

been filed against the Order dated 21.02.2023 passed by the Civil Judge
Junior Division, District Chhindwara in Execution Case No.08-A/2018 by
which the execution of decree has been kept under suspension animation
on the ground that the second appeal is pending.
2. The undisputed facts are that a decree for declaration of title,
permanent injunction and delivery of possession was passed in favour of
the petitioner. The appeal filed by the respondents No.2 and 3 was also
dismissed. Second Appeal No.938/2022 has been filed, however it is
undisputed fact that neither said second appeal has been admitted so far
no there is any interim order. The petitioner put the decree for execution
and an application was filed by the respondents under order 21 Rule 29 of
CPC for stay of the execution of decree during the pendency of the
second appeal. By the impugned order the Executing Court has stayed
the execution of the decree on the ground that Second Appeal
No.938/2022 is pending.
3. Challenging the order passed by the Court below, it is
submitted by the counsel for the petitioner that in absence of any stay in
the second appeal, the Executing Court was not right in staying the
further proceedings.
 3 M.P.No.1860/2023

4. Per contra, it is submitted by the counsel for the petitioner that

the Execution Court has wide jurisdiction under Order 21 Rule 29 of CPC
and therefore has not committed any material irregularity.
5. Heard the learned counsel for the parties.
6. The undisputed fact is that S.A.No.938/2022 is pending before
the High Court. The said appeal has not been admitted so far and
therefore there is no question of any stay. The Supreme Court in the case
of Raghavendra Swamy Mutt Vs. Uttaradi Mutt, reported in
(2016)11 SCC 235 has held that unless and until substantial questions of
law are formulated, the High Court does not have any jurisdiction to pass
any interim order.
7. Furthermore, Order 41 Rule 5 of CPC provides that mere filing
of an appeal would not operate as a stay. Thus what cannot be done by
the High Court can also not be done by the Executing Court under Order
21 Rule 29 of CPC. If the High Court has no jurisdiction to pass any
interim order unless and until substantial questions of law are formulated,
the power to stay the execution of the decree cannot be usurped by the
Executing Court under Order 21 Rule 29 of CPC.
8. Accordingly, this Court is of the considered opinion that
Executing Court committed material illegality by staying further
proceedings of the Execution proceeding.
9. Accordingly, the Order dated 21.02.2023 passed by the Civil
Judge Junior Division, District Chhindwara in Execution Case No.08-
A/2018 is hereby set aside.
10. The trial Court is directed to proceed further with the Execution
Court. However, this direction shall be subject to any interim order
 4 M.P.No.1860/2023

which may be passed in the second appeal after formulation of substantial

questions of law.
11. With the aforesaid observation, the petition is finally disposed
of.

(G.S. AHLUWALIA)
JUDGE
vinay*
Digitally signed by VINAY KUMAR BURMAN
Date: 2023.05.10 18:14:58 +05'30'