IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ALOK AWASTHI st ON THE 31 OF OCTOBER, 2025 MISC. PETITION No. 5768 of 2025 RITESH JHAWAR Versus SAMPATLAL AND OTHERS Appearance:

Shri Chetan Jain - Advocate for the petitioner.

ORDER This petition under Article 227 of the Constitution of India has been preferred by the plaintiff/petitioner being aggrieved by the order dated 12.07.2025 passed by the VIII Civil Judge, Senior Division, Indore in Ex.A-

02/2023.

2. Facts in nutshell leading to filing of this petition is that Respondents

1 & 2 filed a civil suit (RCS A 646/2019) on 12.04.2019 before the VIII Civil Judge, Senior Division, Indore, seeking declaration, cancellation of sale deed, possession, and mesne profits against Respondent No. 3. The petitioner was neither impleaded as a party nor was the sale deed in his favor mentioned. The suit was decreed ex-parte on 31.10.2022. On 04.01.2023, Respondents 1 & 2 filed execution proceedings (Ex.A 2/2023). The Executing Court issued a possession warrant on 06.10.2023, and panchnama was drawn on 19.12.2023 when the petitioner initially became aware of the decree. Thereafter, the petitioner filed his objections under Order 21 Rules 98 & 101 CPC and an application under Section 151 CPC for stay of execution. Respondents 1 & 2 opposed. The Trial Signature Not Verified Signed by: SUMATHI Court rejected both applications vide impugned order dated 12.07.2025. Being aggrieved the petitioner has preferred the present petition.

3. Learned counsel for the petitioner submitted that the petitioner has been in actual possession of the shop and even when possession warrant was issued the petitioner was found to be in possession of the shop in question. An ex- parte decree has been obtained by Respondents 1 & 2 without impleading the petitioner or disclosing the sale deed in his favor. Executing Court wrongly held petitioner’s application under Order 21 Rules 97, 98 & 101 CPC as not maintainable since the decree has not been challenged under Order 9 Rule 13, which is inapplicable since petitioner was not a party to the suit. Learned Executing Court failed to apply provisions under Order 21 Rule 97 correctly and should have registered a separate Miscellaneous Judicial Case instead of dismissing the application summarily. The Executing Court has erroneously relied upon the judgment of Smt. Kailash Bai Patel Vs Vijay Kumar Jaiswal and Others [2008(3) MPLJ 281] which is not applicable in the present case. Under these circumstances, counsel prayed that the impugned order be set aside and the application filed under Order 21 Rule 98 and Section 101 of CPC and the application for stay under Section151 CPC be allowed.

4. I have considered the submissions of the learned counsel for the petitioner and perused the record.

5. In the impugned order, the Executing Court rejected the application in the absence of any evidence or allegation filed along with the petitioner's application in proof of: (i) filing a suit in a competent court to declare the order dated 31.10.2022 as void or voidable or to obtain an injunction; or (ii) filing a separate application for cancellation of the ex-parte decree; nor was any order Signature Not Verified Signed by: SUMATHI staying the execution proceedings placed on record.

6. On this aspect, it is appropriate to reproduce the provisions of Order XXI Rule 97 and 98 of CPC here below :-

97. Resistance or obstruction to possession of immovable property.—

(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

98. Orders after adjudication.—

(1) Upon the determ