2024 Supreme(Online)(MP) 6100
HIGH COURT OF MADHYA PRADESH
SHRI JUSTICE GURPAL SINGH AHLUWALIA, J
Kamal Vijayvargiya – Appellant
Versus
The State Of Madhya Pradesh – Respondent
WP 14682/2024
Advocates:
Deepak Kumaar Raghuwanshi,Advocate General
The Tahsildar must proceed with partition under Section 178 of the MPLR Code if no stay is granted on an appeal, despite the dismissal of a related civil suit.
Headnote:(A) Constitution of India - Article 226 - MPLR Code - Section 178 - Petition seeking quashment of order allowing partition application - The Tahsildar must stay proceedings if a civil suit is pending; however, if the suit is dismissed and no stay is granted on appeal, the Tahsildar must proceed with partition. (Paras 2, 5, 10)
(B) Civil Procedure Code - Order 41 Rule 5(1) - An appeal does not automatically stay proceedings unless specifically ordered by the Appellate Court. (Paras 8, 9)
Facts of the case:
The petitioner challenged the order of the SDO allowing an appeal against the Tahsildar's dismissal of a partition application, arguing that the dismissal of a related civil suit should preclude further action under Section 178 of the MPLR Code.
Findings of Court:
The court found no illegality in the SDO's order to remand the matter back to the Tahsildar for proceeding under Section 178 of the MPLR Code.
Issues: The main issues were whether the dismissal of the civil suit precluded the Tahsildar from proceeding under Section 178 and the effect of the pending appeal on the partition proceedings.
Ratio Decidendi: The court held that the Tahsildar must proceed with the partition if there is no stay on the appeal, emphasizing that mere filing of an appeal does not stay proceedings.
Result: Petition disposed of.
ORDERThis petition under Article 226 of Constitution of India has been filed seeking following reliefs:
“(i) To issue a writ in the nature of certiorari for quashment of impugned order dated 03.05.2024 (Ann.P/7), passed in Revenue Case No.168/appeal/2023-24 by respondent no.2. (ii) Resultantly, the order dated 06.03.2023, passed by respondent no.3 in revenue case No.9/A-27/2022-23, be confirmed.
(iii) Any other relief which this Hon’ble Court may deems fit and proper may kindly be granted to the petitioner, including the cost of litigation.”
2. It is submitted by counsel for petitioner that respondents No. 4 and 5 had filed an application for partition. Tahsildar, Sehore Nagar by order dated 04.08.2022 passed in case No.16/v-27/2021-22 dismissed the application on the ground of pendency of Civil Suit instituted by one Govind Vijaywargiya against petitioner and other persons. It is further submitted that the Second Civil Judge, Junior Division Sehore, District Sehore by judgment and decree dated 03.11.2023 passed in Civil Suit No.1A/2014 has dismissed the suit and has partially decreed the counter claim filed by petitioner against which petitioner has preferred an appeal but it is submitted that there is no stay in the appeal. It is submitted that against order dated 06.03.2023 passed by Tahsildar Sehore Nagar, respondent No.4 and 5 preferred an appeal, which was registered as case No.168/Appeal/2023-24. By order dated 03.05.2024 passed by SDO, Sehore District Sehore the appeal has been allowed and order dated 06.03.2023 has been set aside and the matter has been remanded back to the Tahsildar to decide the application filed under Section 178 of MPLR Code .
3. Challenging the order passed by the SDO, it is submitted by counsel for petitioner that since the suit filed by Govind Vijaywargiya has been dismissed and the counter claim filed by petitioner has been allowed and therefore, the Revenue Authorities cannot proceed further under Section 178 of MPLR Code .
4. Considered the submissions made by counsel for petitioner.
5. Section 178(1-A) of MPLR Code reads as under:
“178. Partition of holding. – (1) XXX (1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the civil court, the Tahsildar shall stay his proceedings pending the decision of the civil court. If no civil suit is filed within the said period, he shall vacate the stay order and proceed to partition the holding in accordance with the entries in the record of rights.”
6. Thus, it is clear that whenever the question of title arises, the Tahsildar shall stay the proceedings under Section 178 of MPLR Code with a liberty to litigating party to approach Civil Court and if the party approaches the Civil Court and obtains an order of stay, then the Tahsildar shall stay the proceedings.
7. In the present case, Civil Suit was pending when the application under Section 178 of MPLR Code was being considered by the Tahsildar. Now the Civil Suit has been dismissed and although an appeal is filed but according to petitioner there is no stay.
8. Order 41 Rule 5 (1) of CPC reads as under:
“5. Stay by Appellate Court. (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
[Explanation – An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the co
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