ORDER

With consent of the parties, the matter is heard finally.

1. This petition under Article 227 of the Constitution of India has been filed by the petitioner / plaintiff against order dated 16.4.2019 (Annexure P/5), passed in Execution Case No.20/2018 by the learned District Judge, Neemuch (MP), whereby in execution proceedings initiated by respondents No.1 to 3 / defendants No.1 to 3, an application was filed by the petitioner / plaintiff under Order 21 Rule 10 read with Order 47 read with section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) for dismissal of the execution proceedings on the ground that judgment and decree dated 16th May, 2018 (Annexure P/1) passed by the District Judge, Neemuch, District Neemuch in Regular Civil Suit No.49-A/2011 is sought to be executed by the defendants No.1 to 3 who, apparently are not the decree holders.

2. Learned counsel for the petitioner / plaintiff has submitted that the respondent (s) being judgement debtor cannot file execution proceedings even though the decree was passed in a suit for partition. Counsel has also drawn the attention of this Court to the fact that initially written statement of the respondent (s) / defendant (s) was that the partition has already taken place and as such, a decree of partition cannot be passed; and now after the decree is passed, the respondent / defendant (s) themselves are proceeding to execute the decree.

3. In support of his contentions, learned counsel for the petitioner / plaintiff has relied upon a decision rendered by a coordinate bench of this Court in the case of Bhanu Shankar Raikwar & another v. Vijay Shankar Raikwar & others reported as = 2013 (1) JLJ 443 = 2013 (1) MPLJ 556, wherein also, a decree was passed in a partition suit and the Court has held that the defendant is a “Judgment Debtor” as provided under section 2 (10) of the Code for all practical purposes, hence, cannot execute the decree. Thus, it is submitted that the execution proceedings initiated by the respondent / defendant be set aside.

4. The petition is opposed by Smt. Archana Kher, learned counsel appearing along with Shri Vinay Vijayvargiya, learned counsel for respondent No.2 and Shri Atul Kumar Gupta, learned counsel appearing for respondents No.7 and 8.

5. Shri Vinay Vijayvargiya has submitted that the petition is liable to be dismissed, as admittedly, the decree passed in the present case was in a partition suit and even though the suit for partition was brought by the petitioner/plaintiff, it is a settled law that in a decree of partition, even the defendants are Decree Holders.

6. In support of his contention, Shri Vijayvargiya has relied upon a decision rendered by the Supreme Court in the case of Dwarika Prasad v. Nirmala & others reported as 2010 (2) MPLJ 249 = (2010) 2 SCC 107, wherein it is held in no uncertain terms that every defendant is in the capacity of a plaintiff in a partition suit and is entitled to a decree in his favour. It is also submitted that even after obtaining the decree of partition, the petitioner/plaintiff has not executed the same and is only hampering the execution proceedings initiated by the respondents/defendants.

7. It is further submitted that so far as the case of Bhanu (supra) is concerned, the question before this Court was not whether a Judgment Debtor in a partition suit can execute a decree. In fact, it was a case where a decree was passed in the partition suit, auction proceedings took place and in execution proceedings, defendant raised an objection. Thus, it is submitted that no case for interference is made out, and the petition is liable to be dismissed.

8. Arguments heard, perused the record.

9. he sole question which falls for consideration of this Court is whether in a decree of partition, a “judgment debtor” can execute the decree, especially when he has resisted the civil suit on the ground that the partition had already taken place.

10. So far as the decision rendered by the coordinat