Smt. Anita Upadhayay vs Smt Pushpa Upadhyay

NEUTRAL CITATION NO. 2026:MPHC-JBP:33058
1 MP-2431-2026
IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
th
ON THE 27 OF APRIL, 2026
MISC. PETITION No. 2431 of 2026
SMT. ANITA UPADHAYAY AND OTHERS
Versus
SMT PUSHPA UPADHYAY AND OTHERS
Appearance:
Shri Atul Anand Awasthy-Senior Advocate with Shri Brijendra
Kumar Vaishya- Advocate for the petitioner.
Shri Naman Nagrath - Sr. Adv. with Shri Utkarsh Kumar Sonkar -
Advocate for the respondent.
Shri Rakesh Dwivedi- Advocate for the caveator.
ORDER
The present petition has been filed challenging the order Annexure P-
1 dated dated 08.04.2026 passed by the trial Court under Section 151 CPC
refusing to grant interim relief during pendency of application under Order 9
Rule 13 CPC filed by the present petitioner-defendant no.2.
2. The learned counsel for the petitioner has vehemently argued that
the petitioner was the defendant No.2 in the suit and a decree for specific
performance has been passed against the defendant No.1 who was the vendor
of the property on the strength of agreement to sale dated 31.03.2011 and to
declare the said sale deed dated 16.11.2011 as null and void as against the
rights of the plaintiff. The said sale deed was in favour of the defendant No.2
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 29-04-2026
11:31:43

NEUTRAL CITATION NO. 2026:MPHC-JBP:33058
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which had been executed by the original owner of the property who had

executed a sale deed in favor of the present petitioner and allegedly executed
an agreement in favor of the plaintiff prior to execution of sale deed in favor
of the defendant No.2. The suit was filed in the year 2019 on the strength of
agreement of March, 2011 and in the said suit the service of the petitioner
was not complete. The learned senior counsel for the petitioner by relying on
the registered letter of service of the present petitioner submits that the
registered packet was received with endorsement of "insufficient address and
referred to sender" which was erroneously considered by the trial Court as
due service of notice and the trial Court erroneously proceeded ex-parte
against the present petitioner-defendant No.2. The ex-parte decree was
passed on 26.01.2026 and the application under Order 9 Rule 13 CPC has
been filed immediately thereafter on 16.03.2026. The petitioner
apprehending the dispossession of petitioner and execution of sale deed has
filed an application under Section 151 CPC before the Court hearing the
application under Order 9 Rule 13 CPC, but the trial Court has erroneously
held that since no execution application has been filed, therefore there is no
need to grant any interim relief and if the parties out of court comply with
the decree, then there is little that the Court can do in the matter.
3. The learned senior counsel has also referred before this Court the
order passed by the Tehsildar ordering mutation of the property back in name
of defendant No.1 and has submitted that after the mutation was carried out
again in favour of defendant No.1 on the strength of the decree in question,
then the defendant No.1 has promptly executed a sale deed in favor of the
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 29-04-2026
11:31:43

NEUTRAL CITATION NO. 2026:MPHC-JBP:33058
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plaintiff on 15.04.2026 during pendency of this petition and after rejection of

application by the trial Court on 08.04.2026. It is argued that it is clear that
there is collusion between the plaintiff and defendant No.1 and the plaintiff
and defendant No.1 just to grab the property of the present petitioner have
got the collusive decree and the trial Court has failed to see through this
design of the plaintiff and defendant No.1 and refused interim relief to the
petitioner which should not be allowed to be sustained.
4. Per contra, the learned senior counsel for the respondents has
vehemently argued that the present petitioner never entered into possession
of the suit land and a house of the present respondent No.1-plaintiff has been
constructed on the suit land and the suit land is now in possession of the
plaintiff and possession has been delivered by the defendant No.1 to the
plaintiff along with the sale deed. It is argued that since no execution has
been filed before the trial Court/Executing Court, therefore the trial Court has
not erred in refusing the application for interim relief in absence of any
execution having been filed before the Executing Court. It is argued that now
nothing further is required to be done in execution of the decree because the
possession has been handed over to the plaintiff and sale deed has been
executed in favor of the plaintiff and therefore if the petitioner-defendant
No.2 succeeds in the application under Order 9 Rule 13 CPC then she may
make prayer for restoration of possession and cancellation of sale deed
therein but at present, the execution of the decree is complete and the present
petition has in fact rendered infructuous because without filing execution
petition, the decree has been fully executed.
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 29-04-2026
11:31:43

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5. This Court has heard learned counsel for the rival parties at length

and perused the record.
6. A civil suit was filed in the year 2019 seeking specific
performance of an agreement of March, 2011 and the plaint duly contained
that the property under agreement has been sold to the defendant No.1 and
the plaintiff also sued to avoid the sale deed executed by defendant No.1 in
favor of defendant No.2.
7. If the envelope of service which has been filed before this Court is
correct then it is clear that there was no due service of the present petitioner
before the trial Court, however, this Court refrains from recording any
conclusive opinion on that but has made this observation only based on the
envelope of service which has been filed along with IA No.8113 of 2026
before this Court which mentions that "address insufficient referred to
sender". So far as question that there is a collusive decree between the
plaintiff and the defendant No.1, this Court need not make any observation
on that because it may be the subject matter of application under Order 9
Rule 13 CPC but on the strength of a decree passed on 26.01.2026 execution
of a sale deed without any execution petition having been filed by the
defendant No.1 does raise some reasonable suspicion. The decree is in terms
that the defendant No.1 shall execute a sale deed in favor of the plaintiff and
the sale deed executed by defendant No.1 in favor of defendant No.2 has
been declared null and void. The defendant No.2- petitioner has been
restrained from transferring the land to third parties as third parties on the
basis of sale deed in her favour because the same has been declared null and
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 29-04-2026
11:31:43

NEUTRAL CITATION NO. 2026:MPHC-JBP:33058
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void. The Trial Court was under a mistaken belief that if the defendant No.1

complies with the decree without any execution petition, then the Court is
helpless. The powers of the Court are to prevent injustice, and not to sit as
silent spectators to injustice.
8. Before this Court, it was vehemently argued by counsel for the
plaintiff-respondent No.1 that the plaintiff is now in possession of the suit
land and a house of the plaintiff is constructed thereupon. It is difficult to
accept this assertion because the sale deed in favor of the plaintiff has been
executed only on 15.04.2026 and the aforesaid sale deed does not speak
about any house but is only but is a sale deed only of agricultural land
without it being a sale deed of any construction. The sale deed categorically
mentions that it is a sale deed of diverted agricultural land and the
photographs attached to the sale deed which are dated 11.04.2026, clearly
show land to be vacant land and the vendor is standing in a vacant land with
trees and shrubs growing there.
9. Because as late as on 11.04.2026 the land was vacant and the trees
and shrubs were growing thereupon, then this Court is unable to accept the
contention of the counsel for the plaintiff-respondent No.1 that on the land in
question, a residential house is constructed and the plaintiff is duly in
possession of the land. If something has been constructed in 10 days, then it
is something that requires intervention of this Court.
10. Looking to the totality of facts and circumstances as noted
above, it cannot be doubted that if interim relief is not granted to the
petitioner then there would be blatant failure of justice and the present
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 29-04-2026
11:31:43

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petitioner would be rendered remediless.

11. Therefore, it is ordered that the respondents shall maintain status
quo as to possession, they shall not raise any construction, and shall not
alienate the suit land in question till disposal of the application under Order 9
Rule 13 CPC filed by the present petitioner.
12. With the above directions, this petition is allowed and disposed
off.
(VIVEK JAIN)
JUDGE
nks

Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 29-04-2026
11:31:43