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2023 Supreme(MP) 878

SUBODH ABHYANKAR
Shambhudas Bairagi S/o Late Shri Motidas Bairagi – Appellant
Versus
Kamlabai Bairagi – Respondent


Advocates:
Advocate Appeared:
For the Appellant SHRI AMIT RAJ, ADVOCATE
For the Respondent:SHRI RAKESH KUMAR LAAD, SHRI AMAY BAJAJ, GOVT. ADVOCATE

Judgement Key Points

Based on the provided legal document, here are the key points:

  • The petitioner, Shambhudas Bairagi, filed a miscellaneous petition under Article 227 of the Constitution of India against an order rejecting his application under Order 9 Rule 7 of the Code of Civil Procedure (CPC) in Execution Case No.72/2016 (!) .
  • The rejection by the Additional Judge to Civil Judge Junior Division, Petlawad District Jhabua, was based on grounds of delay and the conduct of the parties (!) .
  • The underlying suit was filed in 1988, decreed in 2001, and execution proceedings were initiated in 2013 (!) .
  • The petitioner's counsel appeared until 12.03.2021, and another counsel filed a vakalatnama on 16.11.2021, but the application under Order 9 Rule 7 was only filed on 2.12.2022 (!) (!) .
  • The executing court proceeded ex parte against the petitioner after 12.03.2021 and subsequently appointed a receiver on 24.04.2023 (!) (!) .
  • The petitioner argued that the application should not have been rejected outright as he had appeared through advocates on multiple occasions (!) .
  • The respondent argued that the petitioner was aware of the proceedings, appeared on 26 dates, and the rejection was justified due to inordinate delay and conduct, depriving them of the fruits of a decree from 1988 (!) .
  • Order 9 Rule 7 of the CPC allows a defendant who appears on the day of an adjourned hearing to be heard as if they had appeared on the originally fixed date, provided they assign good cause for previous non-appearance, subject to terms as to costs (!) .
  • The Supreme Court decision in Sangram Singh v. Election Tribunal (1955) was relied upon, clarifying that Rule 7 does not mean a defendant cannot appear at all if they do not show good cause, but rather they are not relegated to the position they would have occupied had they appeared (!) .
  • The High Court held that while the executing court had no jurisdictional error in finding no good cause initially, the petitioner's right to contest could not be curtailed given their appearances, and the appropriate remedy was to impose costs rather than reject the application (!) .
  • The impugned order was set aside, and the petitioner's application was allowed on the condition of paying a cost of Rs.10,000/- to the respondents in the executing court (!) .
  • The executing court was directed to conclude the proceedings within a further period of six months (!) .

ORDER :

1. This miscellaneous petition filed under Article 227 of the Constitution of India by the petitioner/judgment debtor against the order dated 28.01.2023, passed in Execution Case No.72/2016 by the Additional Judge to Civil Judge Junior Division, Petlawad District Jhabua; whereby, the application filed by the petitioner/judgment debtor under Order 9 Rule 7 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as “CPC”), has been rejected on the ground of delay and conduct of the parties.

2. In brief facts of the case are that a suit for, declaration, title, possession, and permanent injunction was filed by Kamla Bai Bairagi and 2 others against Motidas Bairagi and four others. The present petitioner/Shambhudas Bairagi happens to be son of Motidas Bairagi. The aforesaid suit was decreed initially on 30.08.2001, and after some other proceeding of remand etc., finally S.A.No.43/2015 (Sampat Bai W/o Motidas Bairagi Vs. Kamlabai W/o Tolaram Bairagi) was also dismissed as barred by limitation filed by petitioner/defendant on 15.02.2018 (Annexure R-1).

3. In the aforesaid suit, the execution proceeding for the civil Suit no.16A/1988 was filed in the year 2013, and the co

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