IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE HIRDESH th ON THE 29 OF MAY, 2024 CIVIL REVISION No. 91 of 2023 BETWEEN:-

KAILASH S/O DURGA PRASAD GATTANI DECEASED THROUGH LRS. VIKAS GATTANI S/O KAILASH CHANDRA

1. GATTANI, AGED ABOUT 49 YEARS, OCCUPATION:

BUSINESSMAN RESIDENT OF BUNGALOW NO. 46 CRPF ROAD NEEMUCH DISTRICT NEEMUCH (MADHYA PRADESH)

KAILASH S/O DURGA PRASAD GATTANI DECEASED THROUGH LRS. SMT. KRISHNA GATANI W/O

2. KAILASHCHANDRA GATTANI OCCUPATION: NOTHING BUNGLOW NO. 46, CRPF ROAD NEEMUCH (MADHYA PRADESH)

KAILASH S/O DURGA PRASAD GATTANI DECEASED

3. THROUGH LRS. VIBHA W/O PRAVEEN BHADADA BHADADA MOHALLA BHILWADA (RAJASTHAN)

KAILASH S/O DURGA PRASAD GATTANI DECEASED

4. THROUGH LRS. ABHA W/O PRAMOD SOMANI R/O GANDHI CHOWK CHITTORGARH (RAJASTHAN)

.....PETITIONERS (SHRI PRIYESH GHOSH, ADVOCATE FOR PETITIONERS)

AND RAJRANI W/O THAKURDAS JI JOSHI DECEASED THROUGH RAMWESHWAR S/O RAMSWAROOP AHIR, AGED ABOUT 57 YEARS, RESIDENT OF GATTANI CHAL DISTRICT NEEMUCH (MADHYA PRADESH)

.....RESPONDENT (NONE FOR THE RESPONDENT)

This revision coming on for orders this day, the court passed the following:-

O R D E R

This civil revision has been preferred by the petitioners under Section 115 read with Section 151 of the Code of Civil Procedure, 1908, being aggrieved by order dated 28.09.2022 passed by the Court of Civil Judge, Class-1, Senior Division, District Neemuch (MP) in Execution Proceedings Case No.1700110/2016 (Kailash Vs. Rajrani) whereby the execution application preferred by him has been dismissed.

(2) The decree holder had instituted an action before the Civil Judge, Class-I, Senior Division, District Neemuch (MP) for permanent injunction restraining the judgment debtors from interfering with their possession over the suit land bearing House No.808 473E/2 Gattani Chhal, Railway Colony, Baghana, District Neemuch (MP). By judgment and decree dated 28.09.2022, the claim was decreed by the trial Court and the judgment-debtor was restrained from interfering with their possession over the suit land. The said decree was based upon the fact that the decree holder was found to be in possession of the suit land. It is common ground that the said decree has attained finality since the same has not been challenged before any higher Court.

(3) The decree holder has filed an application under Order 21 rule 11 of the CPC before the Executing Court submitting that the judgment-debtors have violated the decree of injunction and have started taking the possession of the suit land. Prayer was made for issuance of appropriate direction directing the judgment debtors to deliver the possession of the suit land to decree holder and for punishing them for willful disobedience of the decree. The judgment-debtor contested the application by filing their reply but on 23.07.2022 the executing Court has passed the order by stating that the judgment debtor has no right to interfere with the peaceful possession of the decree holder and direct the decree holder to have legal action for recovery of possession.

(4) By the impugned order the execution application preferred by the petitioners had been dismissed by the executing Court by observing that since the decree in favour of decree holder is for permanent injunction and held that executing court does not go beyond the decree and the executing court has no right to issue possession warrant in regard to the judgment debtor and has rejected the execution proceedings by holding that the new cause of action has arisen to them and they should institute a fresh suit in respect of the same and in the present proceeding no direction for delivery of possession can be issued. It was also observed that the decree holder has not proved that the judgment-debtors have taken possession of the suit land belonging to them.

(5) Though submission has been made by counsel for the petitioners in detail on the question as to whether the decree has been violated by the judgment-debtors and as to whether the said fact i