Back
2025 Supreme(Online)(MP) 4012
HIGH COURT OF MADHYA PRADESH
SANJEEV S KALGAONKAR, J
SMT. SHAKUNTALA DEVI AND OTHERS – Appellant
Versus
PANNALAL AND OTHERS – Respondent
Second Appeal No. 68 of 2022
For the Appellants/Petitioners: Shri Rohit Kumar Mangal
For the Respondents: Shri Sankalp Kochar, Shri Shantanu Sharma, Shri Naman Jain, Shri Apoorv Jain
The execution of a decree may be stayed pending appeal when substantial questions of law are presented, and conditions may be imposed to balance the interests of the parties.
Headnote:(A) Civil Procedure Code, 1908 - Order 41 Rule 5 - Execution of decree - A second appeal was admitted challenging concurrent findings directing removal of encroachment - The appellants failed to comply with the mandatory injunction leading to detention order - Court imposed conditions for stay including a security bond of Rs.3,00,000 - adjustment of stay pending the appeal was found necessary to prevent prejudice. (Paras 1, 2, 5, 6, 7, 8)
(B) Appeal - Assessment of compliance and relief - The executing court's orders are subject to the outcome of the appeal, with substantial questions framed regarding the necessity of a spot inspection and presumption applied without a work completion certificate - Conditions for stay were considered to balance the interests of both parties. (Paras 3, 4, 10, 11)
Facts of the case:
The appeal arises from a civil suit where a mandatory injunction was granted to remove illegal encroachments on the plaintiff’s property - The appellants contest the findings of both the trial and appellate courts, alleging procedural errors and questioning the necessity of a local commission.
Findings of Court:
The stay on the execution of the impugned judgment will continue pending the appeal, subject to various conditions to mitigate prejudice against the decree-holder.
Issues: The primary issues include the propriety of not appointing a local commissioner and the validity of the obtained presumption regarding the non-production of necessary documents.
Ratio Decidendi: The court determined that the execution of the impugned decree must be stayed pending final resolution of the appeal, given the formulated substantial questions of law.
Result: The application for vacating the stay order was dismissed.
| Table of Content |
|---|
| 1. court reviewed the history of compliance with the injunction. (Para 1) |
Heard on I.A. No.8510/2024, an application for vacating the stay order dated 01.09.2022 and also for dismissal of Second Appeal on behalf of respondent No.1.
The present second appeal was filed assailing the concurrent findings of the mandatory injunction against the defendant/appellants directing removal of illegal construction made towards adjoining house of the plaintiff/respondent. Learned counsel referring to the judgment and decree dated 28.02.2019 passed in Civil Suit No. 34-A/2013 submits that ten specific directions were issued to the respondents No.1 and 2 for removal of encroachment towards the property of the plaintiff. The judgment and decree of the trial Court granting mandatory injunction was affirmed by First Appellate Court vide judgment and decree dated 10.11.2021 passed in Civil Appeal No.27/2019. The plaintiff/respondent had filed an execution application. The defendants/appellants did not comply with the directions contained in the impugned decree, therefore, the Executing Court vide order dated 01.08.2022 directed detention of the defendants in civil prison for thirty days. Meanwhile, the second appeal was preferred. This Court vide order Signature Not Verified dated 01.09.2022 admitted the appeal and formulated substantial questions of law.
Further, this Court granted an ad interim stay in following terms .......
"Till the next date of hearing, the operation of impugned judgment and decree shall remain stayed."
This ad interim relief continues till date.
Learned counsel for the plaintiff/respondent submits that the appellants have suppressed material facts and misguided the Executing Court as well as this Court. Learned counsel referring to interlocutory application under section 151 of CPC filed before the Executing Court on 06.08.2022 submits that the respondent/plaintiff had stated in the application that he has substantially complied with the decree and nothing remains to be complied with whereas the appellant did not comply with the decree and misrepresented the facts. Learned counsel referring to the affidavits filed under directions of this Court by both the parties and the photographs annexed therewith, attempted to show that the directions contained in the impugned decree have not been complied with till date. The ad interim stay order was obtained by suppression of material facts, therefore, it deserves to be vacated and the decree holders/respondent be permitted to proceed with the execution of the decree.
Per Contra, learned counsel for the appellants submits that the appellants have assailed the impugned judgment and decree on merits. This Court, after considering the grounds of appeal, has admitted the appeal on 01.09.2022 and formulated following substantial questions of law :
(i) Whether in the facts and circumstances of the case, the courts below have committed an error of law by granting a decree or allowing the suit of the plaintiff without obtaining an independent and unbiased Signature Not Verified spot inspection report by appointing a local commissioner ?
(ii) Whether in the facts and circumstances of the case the learned trial Court has committed error of law in applying the presumption for want of any statutory provisions of law with regard to non-production of work completion certificate by the appellants and draw inferences against them with regard to illegal construction ?
Learned counsel referring to the evidence before the trial Court and proceedings of the trial Court contends that the plaintiff did not participate in the demarcation proceedings by the commissioner, therefore, the trial Court proceeded to decide the suit on the basis of evidence on record. The decree of both the Courts is assailed mainly on the ground that the boundary dispute cannot be adjudicated without appointing a local Commissioner. This Court admitting the contention has formulated substantial question of law No.(i), th
