Ashish Pathak vs Prakashnath Chaturvedi (Dead) Through Lrs Vivek Chaturvedi
- Court
- Madhya Pradesh High Court
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON’BLE SHRI JUSTICE VIVEK JAIN
ON THE 23rd OF JULY 2023
MISC. PETITION NO 4391 OF 2026.
ASHISH PATHAK
VS
PRAKASHNATH CHATURVEDI (DEAD) THROUGH LRS VIVEK CHATURVEDI
MISC. PETITION NO 4395 OF 2026.
ASHISH PATHAK
VS
PRAKASHNATH CHATURVEDI (DEAD) THROUGH LRS VIVEK CHATURVEDI
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Appearance:
Shri Shashank Shekhar- Senior Advocate with Rohit Sohgaura- Advocate for the
petitioners.
Ms. Sudipta Choubey- Advocate for the respondent .
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(O R D E R)
Since these two cases have been filed by the same party, being
aggrieved by the same decree being executed, therefore, both the petitions are
taken up together and are being decided by this common order.
2. MP 4391 of 2026 has been filed by the petitioner who is objector
in the execution proceedings, being aggrieved by the orders dated 02.07.2026
and 13.07.2026 passed by the executing court in the execution proceedings,
whereby the executing court has refused to stay the execution proceedings.
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 25-07-2026
13:08:05
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3. MP No. 4395 of 2026 has been filed by the petitioner being
aggrieved by the order of the executing court in MJC proceedings registered
under Order 21 Rule 97 CPC, wherein the present petitioner had prayed for
stay of the execution proceedings by making such prayer in proceedings under
Order 21 Rule 97 CPC. By the impugned order dated 13.07.2026, the prayer
made in these proceedings for stay of the execution has been turned down by
the executing court.
4. Learned counsel for the petitioner has vehemently argued that the
impugned orders passed by the executing court are unsustainable in law and
the executing court has refused to exercise the jurisdiction which was vested in
it, and has refused to stay the execution proceedings till the application under
Order 21 Rule 97 is decided, which deprives the petitioner of his right to
file the application under Order 21 Rule 97, CPC. That application will now
lose its meaning if the decree for possession is not stayed. If the petitioner will
lose possession of the land in question, then his purpose of filing objections
under Order 21 Rule 97 would be frustrated. The endeavour of the executing
court should have been to preserve the status of the parties till the application
under Order 21 Rule 97 is adjudicated, but the executing court has not
exercised the jurisdiction vested in it.
5. By arguing on merits of the case, it is argued that the original
plaintiff had filed a suit for eviction of the original defendant from the suit
property on various grounds as available to him under MP Accommodation
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Signed by: ARVIND KUMAR
MISHRA
Signing time: 25-07-2026
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Control Act, 1961 (for short hereinafter referred to as Act of 1961), and the
said suit was decreed by passing the decree of eviction dated 12-09-2011.
However, the decree holder had land only in survey number 1126/2, and he
had no land in survey number 1126/1. The present applicant has purchased
certain land from the original owner of the land in survey no. 1126/9, which
has been carved out from old number 1126/1. The sale is by registered sale
deed dated 05-04-2012, and then survey no.1126/9 was thereafter subdivided,
and the portion sold to the present petitioner was carved out as survey no.
1126/10. Be that as it may be, but since the present petitioner has purchased
the land in the year 2012 from the land which was originally part of survey no.
1126/1, therefore decree holder has no right to claim possession from the
present petitioner as decree holder has land only in survey no. 1126/2.
6. Learned senior counsel further contends that it is true that earlier
objections under order 21 Rule 97 CPC were made by one Atisha
Constructions, which is owned by close relatives of the present petitioner, but
he said Atisha Constructions had purchased some land from the
judgment debtor vide registered sale deed dated 31-03-2013, and it was in that
backdrop that the objections under Order 21 Rule 97 CPC were rejected. The
said order was confirmed even upto this court in Second Appeal. However, the
said orders passed in the case of Atisha Constructions do not have any bearing
on the case of the present petitioner because said Atisha Constructions had
purchased land in survey no. 1126/6, which was also incidentally earlier part of
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Signed by: ARVIND KUMAR
MISHRA
Signing time: 25-07-2026
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1126/1. Though objections of Atisha Constructions under Order 21 Rule 97
might have been rejected, but the position remains that the present petitioner
has purchased the land in year 2012 from one Agrawal family, who was the
original owner of the land in survey no. 1126/1.
7. Therefore, by placing reliance on various documents, it is
vehemently contended by counsel for the petitioner that the present petitioner
is having a right to get his objections decided under Order 21 Rule 97, and if
the possession of the present petitioner is not protected, then it would be a
travesty of justice.
8. Learned senior counsel for petitioner further contended that one
demarcation be carried out because the map of the suit land is disclosed in the
plaint itself, and that demarcation would clarify that where the suit land
lies, and without a demarcation from the authorities, the decree cannot be
executed.
9. Per contra , it is vehemently contended by the learned counsel for
the respondent that the present case is a classic case of political interference in
land disputes. The present petitioner is cousin brother of Sanjay Pathak, who is
MLA of ruling party, and he is one of the owners of Atisha Constructions,
which had earlier filed objections in the execution proceedings, and the said
objections under Order 21 Rule 97 were rejected, which was confirmed up to
this Court in Second Appeal. Thereafter the present applicant has jumped into
the fray, basing his case on a sale deed of the year 2012, and he is cousin
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MISHRA
Signing time: 25-07-2026
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brother of that Sanjay Pathak. It is argued that no demarcation from the
revenue authorities would be fair in the case, because the present petitioner
belongs to family of the ruling party MLA, and the administrative authorities
would not be doing any fair demarcation. It is further argued that the plaint
itself contains the plaint map, which is very clear in itself, and there was no
need to disclose revenue survey number in the plaint, because it was case of
eviction of tenant, and the simple case of eviction of tenant has been given
such a proportion at the stage of execution, that the execution is pending since
the year 2012 without any progress till date, and already 15 years have
been spent in execution proceedings. It is now high time that the decree of
possession from tenant be executed.
10. It is argued that the execution proceedings cannot be stalled at the
instance of an objector who waits to jump in the execution proceedings till the
very end, and who has not intervened in the execution proceedings at the very
outset, which shows his intention is only to delay the execution proceedings by
any fair or unfair, moral or immoral means. Therefore, it is prayed to dismiss
the present petitions.
11. This court has heard learned counsel for the rival parties at length
and perused the record.
12. A suit for eviction was filed against tenant, named as Raghuvir
Singh, in the year 2000. The plaint of the said suit had the plaint map. The suit
for eviction of tenant was filed on various grounds before the trial court as
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Signed by: ARVIND KUMAR
MISHRA
Signing time: 25-07-2026
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available to the landlord under the M.P. Accommodation Control Act, 1961. In
the said suit, the defendant was even raised the question of the survey number
of the suit land. In the said suit the defendant had setup the case that the
portion let out is part of survey no. 1126/1 and new number of which is 1126/6
and 1126/7. However, discarding all these defences the trial court had passed
the decree of eviction against the defendants.
13. After the said decree in the year 2011, it is seen that some part of
survey number 1126, that is 1126/ 9, was purchased by the present
petitioner on 05.04.2012. A part of survey no. 1126/1 was purchased by
Atisha Constructions acting through Sanjay Pathak, by a sale deed dated
02.06.2012, from Agrawal family. By another sale deed dated 31.03.2013,
some portion of survey no. 1126/6 was purchased by Atisha Constructions,
through Sanjay Pathak from the original defendant.
14. Atisha Constructions had filed objections under Order 21 Rule
97, which suffered rejection by the trial court, and the rejection order was
confirmed by this court in S.A. No. 646 of 2023, which is stated to have been
confirmed by Hon’ble Apex Court.
15. Thereafter, the present petitioner appeared in the execution
proceedings and objected to the execution continuing on the ground that, it is
the decree holder who should file objections under Order 21 Rule 97, CPC,
and execution proceedings cannot proceed against the present applicant. That
matter came up to this Court in MP No. 2775 of 2025 and 6765 of 2025, which
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MISHRA
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were decided by a common order dated 03.02.2026 by this Court. This court
has held that the present petitioner has a remedy to file objections under Order
21 Rule 97. In this backdrop, now the objections under Order 21 Rule 97, have
been filed before the executing court in March 2026, and, therein, the prayer
for stay has been made, which has been turned down by the executing court.
16. Since the objections of the present petitioner under Order 21 Rule
97 are still pending before the executing court, therefore, this court does not
intend to give any conclusive finding on the merits of the case of the present
petitioner, but it is only considering that whether the present petitioner has a
prima facie case for the stay on execution proceedings.
17. The plaintiff had filed a suit containing plaint map, and it was a
simple eviction suit, filed against the tenant by landlord for eviction of tenant.
It was decreed on the grounds of bona fide need of landlord. The plaint map
duly contains the dimensions of the suit property, which is not in dispute.
18. After passing of the decree for eviction various sale deeds have
taken place in favour of the present petitioner Ashish Pathak, as well as in
favour of Atisha Constructions through Sanjay Pathak.
19. The learned counsel for the respondent has vehemently argued
that Sanjay Pathak being a ruling party MLA is resisting execution of decree
and any local commission to know the identity of the suit property would be
futile if it is conducted by Revenue Officials. However, this court does not
intend to comment anything on that assertion. At this stage, it cannot even be
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Signed by: ARVIND KUMAR
MISHRA
Signing time: 25-07-2026
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inferred that the revenue officials would be partial or impartial. There can be
no generalised legal presumption that in the case of ruling party MLA, the
revenue officials would be biased in his favour. Such a generalised assumption
cannot be made by this court, which would be uncalled for.
20. However, it is to be seen that whether at this stage any such local
inspection is warranted at all, or not. The plaint duly contains the plaint map
which contains the four boundaries and dimensions as well as the adjoining
properties of the suit property. Adjoining properties are the house of Plaintiff,
Kabristan, Land of Umeshnath and Surendranath. The adjoining properties are
very well marked and it cannot be said that the suit property cannot be
identified from the spot, or that it would require a demarcation by the revenue
officials. The dimensions of the land are also clear and the four boundaries of
the land are also clear.
21. It does not need any demarcation of revenue officials as to the
survey number in which the said land falls, because it would be an
unnecessary exercise. The executing court is bound to execute the decree and
the plaint contains the plaint map which is sufficiently clear in itself.
22. So far as the objections of the present objector seeking stay on
execution till disposal of his objections under Order 21 Rule 97 CPC is
concerned, the petitioner lacks bona fides in that regard. The petitioner had
purchased the property by a sale deed executed in the year 2012.
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Signed by: ARVIND KUMAR
MISHRA
Signing time: 25-07-2026
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23. In the case of Usha Sinha v. Dina Ram & Ors. (2008) 7 SCC
144 , it has been held by the Hon’ble Supreme Court that a pendent lite
purchaser should be aware of the pending litigation, though sought to be
distinguished by learned counsel for the petitioner by stating that he is not a
transferee from the judgment debtor, but the present petitioner is a
transferee from Agrawal family which is the original owner of survey no.
1126/1. However, since the plaintiff is suing for possession from a particular
portion of the land which is suit property and the execution is going on since
the year 2011, then the timing of the present petitioner jumping into the
fray raise suspicion as to his bonafides. The objections of the company of his
cousin brother have been rejected up to this Court in Second Appeal.
Thereafter the present applicant jumping into the fray to object to execution of
the decree does indicate lack of bona fides of the present petitioner in the entire
matter. It has been held by the Hon'ble Supreme Court recently in the case of
Challani Ginning and Pressing Factory Versus Kamal, reported in 2026
SCC OnLine SC 718 that where the execution proceedings are pending since
long, then the objector cannot feign ignorance of the execution proceedings
and delay filing proper objection till dispossession is threatened. The Hon'ble
Apex Court has held as under:-
“ 7. The Executing Court and the Appellate Court have also found that
there were two other properties in the same locality. Plot no. 10, belonging to
the objector and plot no. 49 belonging to her other son; transacted individually
by them despite a claim having been now raised by the objector that the
properties acquired by the mother and the brothers were acquired with the
nucleus of the joint family business. The other son had also entered into a
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MISHRA
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similar transaction based on which Special Civil Suit No. 26/2014 had also
been decreed in a like manner. It is also pertinent that the attachment in the
execution proceedings with respect to the property, which is the subject matter
of the present proceedings, being plot no. 11, was affixed in a conspicuous part
of the property on 21.09.2017. The objector having asserted that she was all
along residing in the said property, cannot feign ignorance of the execution
proceedings and delay a proper objection being taken up till dispossession is
threatened. The suit was decreed in 2017, and the execution proceedings are
pending for the last nine years, when several objections were raised, all of
which stood declined. A further objection by the mother of the original
judgment debtor claiming 1/3rd share in the property at this stage, when all
along the mother and the sons were carrying on the business together, to
further the prospects of which, the loan admittedly was taken, is a deliberate
attempt to stall the recovery .”
(Emphasis supplied)
24. In the present case also seems to be a case where the present
petitioner has strategically waited till the dispossession is threatened and when
the attempts of his cousin brother to oppose to the execution of the decree have
failed, and then he has appeared into the picture. He firstly tried to object to
execution without filing objections under Order 21 Rule 97 and then he has
filed objections under Order 21 Rule 97 CPC and is now seeking stay till
disposal of objections.
25. Members of the same extended family filing objections one after
the another in one name or the other, one by company, one in individual name,
is nothing but unnecessary attempts to resist execution of a decree. In such
circumstances it cannot be stated that there is an existence of prima facie case
so as to seek stay on execution of decree till objections under Order 21 Rule 97
are disposed of. Therefore, this Court does not intend to interfere in the order
passed by the executing Court. These petitions fail and are dismissed .
However, it is observed that the observations contained in this order shall not
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Signed by: ARVIND KUMAR
MISHRA
Signing time: 25-07-2026
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come in the way of either of the parties at the time of adjudication of the
application under Order 21 Ruld 97 CPC on merits.
(VIVEK JAIN)
JUDGE
MISHRA
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 25-07-2026
13:08:05