IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 19 OF JANUARY, 2026 MISC. PETITION No. 6528 of 2025 RAJENDRA KUMAR BEDI Versus VIRENDRA KUMAR BEDI Appearance:

Shri Sunil Kumar Jain - Advocate for the petitioner. Shri Shriniwas Tiwari-Advocate for the respondent.

ORDER The present petition has been filed challenging the order dated

28.10.2025 passed by the Executing Court whereby the Executing Court has rejected an application under Order 26 Rule 9 CPC for appointing local commissioner.

2. A suit was filed by the present petitioner for partition, declaration and separate possession. During pendency of the suit the parties entered into a compromise and application under Order 23 Rule 3 CPC was filed in pursuance to which the trial court prepared compromise decree vide Annexure P/3 dated 28.04.2015.

3. Thereafter, the present petitioner/plaintiff filed an application for execution in terms of Order 21 Rule 32 CPC before the Executing Court stating therein that the respondent has encroached upon a portion of the petitioner/plaintiff which was given to the petitioner/ plaintiff as per the compromise decree and prayer has been made in the said application for execution to handover the possession and confine the respondent/defendant in civil jail. Along with the said execution petition, an application under Order 26 Rule 9 CPC was also filed which has been rejected by the executing court on the ground that it amounts to collection of the evidence and executing Court would not aid in any collection of evidence.

4. The aforesaid order has been criticized by the counsel for the petitioner on the ground that it was the case where encroachment was to be ascertained because the petitioner's case is that after compromise decree there has been encroachment on a portion of the present petitioner and the property in question is a two storied house which has fallen in the share of two brothers who are plaintiff and defendant and in case of encroachment of portion of one brother by the other, it would not be possible to prove the same by oral evidence and local commission would have been proper to adjudicate the controversy as it was a case of encroachment.

5. Per contra, counsel for the respondent-defendant has vehemently argued that the decree is not of possession and the plaintiff never entered into possession of the portion as per the compromise decree and even on the date of passing of the decree, the plaintiff was not in possession and therefore, the execution application itself is not maintainable.

6. Upon hearing the rival parties, it is seen that as far as the objection of the respondent-defendant as to maintainability of the Execution Petition is concerned, the same has not been decided by the executing court and such a issue which has not been decided by the executing court, this court would not go into such issue in these proceedings under Article 227 of the Constitution of India. The respondent is set at liberty to agitate this issue before the executing court in accordance with law.

7. The rejection of application under Order 26 Rule 9 CPC is only on the ground that the application amounts to collection of evidence and the executing Court would not aid the plaintiff in collection of evidence. However it was the case of portion of a single two storied house which has fallen in the share of the two brothers who are plaintiff and defendant. It is settled in law that in case of encroachment and boundary disputes, local commission can be ordered by the court and such a local commission would aid the court to arrive at conclusion. (See:-Prembai (Smt.) and others Vs. Ghanshyam and others reported in (2010) 3 MPLJ 345 and Anurag Jaiswal Vs. Colletor, Khandwa and others, (2019) 2 MPLJ 637.)

8. The counsel for the respondent had relied on a Judgment of coordinate Bench of this Court in the case of Saurabh Sharma Vs. Ramwati Pal (M.P. No. 5385/2023). However, in the said case which was not a simple bound